Court-Packers Say Court-Packing Is Not Court-Packing

A good sign that your argument is neither good nor popular is when you have to keep changing the long-accepted meaning of words. So it is with a Bloomberg Law op-ed by law professors Tonja Jacobi and Matthew Sag titled “The Supreme Court Needs 15 Justices.” The op-ed’s subhed leads off: “Changing the law to allow 15 U.S. Supreme Court justices would not be court packing. It would allow the court to take many more cases and address some of the urgent issues that it currently neglects.” Bloomberg uses the same line in promoting the op-ed on Twitter:

To be fair to Jacobi and Sag, the text of the op-ed does not actually say this, so it is possible that the effort at redefining the words is the work of a Bloomberg Law editor, but it is a terrible argument. The whole reason why we use the term “Court-packing” to refer to expanding the Supreme Court for purposes of tipping its ideological balance is that we have an extremely notorious historical example of exactly that being proposed: Franklin D. Roosevelt’s 1937 plan. It was, for a while, the hottest issue in American politics; it was resoundingly rejected by the public, the media, and FDR’s own party; and it has since stood for decades in the history books as the very paradigm of presidential overreaching being too much even for his own party. Until very recently, there was not the slightest question that this is what “Court-packing” meant, and dictionaries and history books considered that a settled question. The only possible purposes of redefining the term are for proponents of Court-packing to try to escape the bad odor that historically has hung around FDR’s plan, or for opponents of other things to try to shoehorn them into being Court-packing so as to absorb that bad odor. The Bloomberg Law piece even features a YouTube video that helpfully explains what Court-packing is, and guess what? Even in the video, it’s FDR’s plan.

That said, the actual arguments made by Jacobi and Sag are not that much better. You can tell things are not going in an honest direction when we start off with this: “Supreme Court decisions are labeled ‘activist’ when people oppose their outcomes. This fuels a misconception that the court does too much.” Now, a cynic can certainly observe that the term “activist” is often used to mean “something I do not like,” but it actually does have a specific meaning: A court is activist when it (1) strikes down some act by the political branches and (2) does so without a clear basis in the text or history of the Constitution. (That definition can reasonably be extended to a court issuing a remedy that goes beyond grounding in the textual sources, or reading a statute in similar fashion.) That is an ideologically neutral definition of activism if you believe in the rule of written law, but liberals and progressives do not like it as a definition — even though it is one under which both conservative and liberal jurists can be called out — precisely because they do not see the meaning of democratically enacted laws as a legitimate constraint on judges.

Anyway, Jacobi and Sag move on to argue that the Court should hear more cases, a posture that is arguable at the margins but proceeds from a wholesale misunderstanding of the role of the Court:

Last year, the Supreme Court decided 73 cases. In the 1980s, the court heard more than twice that, 160 cases per term on average. The U.S. is renowned for its litigious culture, surely there cannot be less than 100 cases worthy of review each term by the apex court of the judiciary. In fact, there were almost 300,000 federal civil cases filed in the U.S. in the 12-month period ending Sept. 30, 2020, and over 90,000 federal criminal cases in the 12-month period ending March 31, 2019. The Supreme Court is the final court of appeal for all these suits and for constitutional issues arising in the millions of civil and criminal cases in the state court systems. It simply does not review enough cases to fulfill its oversight function.

While the Court does occasionally insert itself into controversies of major national importance, oversight is not especially central to the job the Court does. We have had, since 1891, a system of permanent, intermediate federal appeals courts for that — the creation of which ended the practical reasons for expanding the Court that had prevailed in the 19th century — and every state has its own appellate court system. What the Court does is provide a final arbiter of questions of law when the other appeals courts are in disagreement, so that a single rule of law can be used by those courts in all cases. Jacobi and Sag complain that the Court does not do enough of that:

There are numerous other areas where appeal courts in different parts of the country have developed contradictory doctrines. These “circuit splits” are a criterion for Supreme Court review, but the court regularly opts to leave those divisions unresolved. These unresolved circuit splits lead to forum shopping and increase the uncertainty—and cost—of litigation.

Adding more justices does not actually enable the Court to hear more cases, since every justice has to work on every case. Consider the solution that Jacobi and Sag offer, which is supposed to address that objection:

Real reform is required, and for that we need a court of 15 justices, with the justices sitting in three panels of five judges on any normal case. On very important cases, the court could vote to sit all 15 justices together en banc. This would allow the court to take many more cases and address some of the urgent issues that it currently neglects…A Supreme Court panel system with random assignment will help overcome another problem: ideological extremism. As politics has become more polarized, so too has the Supreme Court. But no judge likes to be overturned by their peers, and so the panel system will encourage the justices to moderate themselves.

The logical flaw here ought to be obvious. You know what a system of random draws of judges would look like? The circuit courts we already have. Jacobi and Sag would replace one set of lower tribunals and one set of splits with another. There is no gain in efficiency here whatsoever. And some of their grievances are totally unrelated to how many cases the Court takes. They complain:

The criminal justice system faces a mass incarceration crisis. The Supreme Court not only refuses to address this issue, but has failed to seriously regulate the process by which 99% of inmates are incarcerated through plea deals. Prosecutors have almost unfettered discretion to leverage pleas from frightened defendants. Even the exoneration of hundreds of innocent inmates after decades in prison has not inspired the court to address this issue.

How many people to jail, and what latitude to give prosecutors to make plea deals, are policy questions to be addressed by elections and legislatures. They also argue that “in election law, the court recently acknowledged that partisan gerrymandering ‘is incompatible with democratic principles.’ Yet it declared itself unable to do anything about it for want of manageable judicial standards.” The impossibility of judicially manageable standards for regulating partisan gerrymandering is not solved by having more judges engaged in the same standardless inquiry.

Could the Court, with its current personnel, handle more cases? I think it could and should, and that the docket ought to get back up around 100 cases a year, but there are costs to that, too. As Justice Jackson once quipped, “We are not final because we are infallible; we are infallible because we are final.” Getting rules of law right is more important than getting them resolved quickly. The Court’s intellectual rigor has undoubtedly increased since the 1970s, when it took many more cases than it does now.

Court-packing is a solution in search of an excuse. Wanting the Court to hear more cases is a transparently flimsy one.