Steve Vladeck's "Hard Questions About Court Expansion"

Georgetown law Professor Steve Vladeck is one of the leading critics of the conservative majority on the Supreme Court. But in an insightful recent post on his substack, he outlines key reasons why “court expansion” is a bad response to its flaws. The cure is likely to be worse than the disease:

[I]t seems to me that those who are fully onboard the expansion-or-bust train should have to do more than simply assert that having four new Democratic appointees on the Court in 2029 would be a self-evidently “good” thing. If nothing else, proponents of expansion should have to answer the following four questions:

1. How do we avoid touching off a race to the bottom, where each time one party controls the House, Senate, and presidency, it expands the Court to ensure an ideologically and politically sympathetic majority?
2. If a race to the bottom is unavoidable, how do we avoid further (and potentially fatal) erosion of public confidence in the Court—which will quite transparently be little more than a lever of power for whichever party last had such a trifecta?
3. If eroding public confidence in the Court is a feature, and not a bug, how do we insulate against the same erosion of public confidence in lower federal courts?
4. What is the case for why expansion is a better way to achieve the desired reforms than alternatives that would (or, at least, should) avoid many of these forward-looking concerns?

He adds that court-packing could easily “permanently undermine judicial review as an institution.” The rest of his piece (which is behind a paywall) offers far from reassuring answers to these questions.

I have offered similar criticisms of court-packing in a long series of articles and blog posts, most recently in a June Lawfare article  where I explained (among other things) why the Supreme Court’s recent decision in Louisiana v. Callais doesn’t justify packing, and in a July UnPopulist article critiquing a court-packing proposal advanced by Andy Craig. In these pieces, I explain why the Court’s record of checking dangerous abuses of government power – though not without serious flaws – is considerably better than many critics claim. In addition, I argue that court-packing is likely to undermine effective judicial review – not only by the Supreme Court, but also by lower courts.

Like Vladeck, I think some of the issues that concern critics of the Court can be more effectively addressed in other ways. For example, in the Lawfare article, I explain how Congress can fix the flaws of the Callais decision by banning or restricting gerrymandering. It could also enact a binding ethics code for the justices. Justice Alito was wrong to suggest otherwise, back in 2023. That said, if your main goal is a sweeping reversal of much of the Court’s recent jurisprudence, there may be no easy way to achieve that quickly without court-packing or something like it. I would argue that any benefits that might achieve are outweighed by the enormous costs of destroying judicial review.

In addition, if your objection to the Court’s recent decisions is that they often don’t do enough to constrain unconstitutional actions by other branches of government or by the states, court-packing is likely to make that problem worse, not better. Destroying judicial review won’t enforce tighter constitutional constraints on the executive or bring back Roe v. Wade. To the contrary, it would largely destroy any hope of doing so.

In another recent piece, I assessed “non-packing” rationales for increasing the size of the Supreme Court. There, I argue that these rationales are mostly weak; and, to the extent they have merit, there are better ways to address them than an expansion that amounts to court-packing. I even outline possible ways to increase the size of the Court without creating an opportunity for court-packing (this would require allowing the party that doesn’t hold the White House to pick some of the new justices).

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