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That move comes just a week after President Joe Biden signed an executive order establishing a commission to study whether the nation’s highest court should be expanded. ”

The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals,” reads the EO, adding: “This action is part of the Administration’s commitment to closely study measures to improve the federal judiciary, including those that would expand access the court system.”

At first glance, you might be tempted to think that Things. Are. Happening.
The Democratic establishment listened to its liberal wing during the 2020 campaign and is reacting to blunt the clear advantage on the court that Trump, with a major assist from Sen. Mitch McConnell of Kentucky, established over the last four years!

Chris Cillizza, CNN

At the very least, the court should not be a deeply anti-majoritarian institution. (There is a 6-3 conservative majority on the court, even though Republicans have only won the popular vote for the president once in the last eight elections and have represented a majority of Americans in the Senate just once in the last 40 years.)

Some alternative arrangement of the court, then, would be better for the health of our democracy. Term limits make a lot of sense, but they’re not going to do a ton on their own, especially in the near term. That said, I don’t see “packing” as a productive solution. It only further delegitimizes the court.

Lee Drutman, FiveThirtyEight

I’m not sure I agree, Lee, that the court shouldn’t be counter-majoritarian. I’ve been working with FiveThirtyEight’s Laura Bronner on an article about the inherent biases in our political system, and one of the things I’ve learned is that the founders specifically tried to insulate several institutions, including the Supreme Court, from public opinion by making them counter-majoritarian, or (to use a less fancy term) minority-protecting. So the problem isn’t necessarily that Republicans control the Supreme Court despite the results of the last election; that’s a feature, not a bug. Rather, the problem is that Republicans have an unfair electoral (or appointed) advantage in pretty much every institution in our government right now.

While I see the argument that court packing would help to alleviate this balance somewhat, I ultimately think it’s bad for democracy. Adding more justices to the Supreme Court would be a violation of democratic norms, which creates a slippery slope to democratic backsliding (sorry for the mixed metaphors!).

Nate Rakich, FiveThirtyEight

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“Nine seems to be a good number. It’s been that way for a long time,” she said, adding, “I think it was a bad idea when President Franklin Roosevelt tried to pack the court…”

Roosevelt’s proposal would have given him six additional Supreme Court appointments, expanding the court to 15 members. And Ginsburg sees any similar plan as very damaging to the court and the country.

“If anything would make the court look partisan,” she said, “it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’ ”

That impairs the idea of an independent judiciary, she said.

Ilya Somin, Reason

I have written about the dangers of court-packing in greater detail here, here, here, and here, including addressing claims that it is an appropriate response to Republican skullduggery in the judicial nomination process, such as their hypocrisy in refusing to vote on a nomination in an election year in 2016, while pushing one through quickly just before the 2020 election. I also opposed an abortive conservative proposal to pack the lower courts back in 2017, which occasioned my first foray into this issue.

Ilya Somin, The Volokh Conspiracy

So why go through this pointless, if highly ballyhooed, exercise? The answer is not hard to divine. This ill-conceived project is a jerry-rigged contrivance to try to appease the unappeasable wing of the party in power, generated in large part by former President Donald Trump’s astonishing accomplishment, collaboratively with Senate Republicans led by Mitch McConnell: the Senate’s confirmation of three Constitution-honoring judges to the nation’s high court. That was just too much for firebrands such as Senate Majority Leader Chuck Schumer, looking fretfully over his left shoulder at prospective challengers to his cushy seat, with his threat-filled outburst on the grounds of the nation’s foremost courthouse.

Ken Starr, Washington Examiner