Packing and Unpacking State Courts

When it comes to court packing, questions of “should” and “can” are inextricably intertwined. The conventional wisdom has long been that federal court packing is something the President and Congress simply cannot do. Even though the Constitution’s text does not directly prohibit expanding or contracting the size of courts for political gain, many have argued that there is a longstanding norm against doing so, stemming from a commitment to judicial independence and separation of powers. And so (the argument goes), even though the political branches might otherwise be tempted to add or subtract seats to change the Court’s ideological makeup, for reasons related to the Constitution and history they should not, meaning for reasons related to politics they cannot. But even the strongest norms are susceptible to pressure, and recent moves by scholars and politicians are calling the conventional wisdom about court packing into question. Based largely on the claim that the majority Republican Senate “unpacked” the Supreme Court by refusing to hold hearings upon the nomination of Judge Merrick Garland in 2016, some have begun to argue that court packing can be done because it recently has been done (by the political right), and now should be done (by the political left). Missing in the debate over the positive question—whether court packing has recently occurred—is that it has unquestionably happened in the past several years in state courts across the country. Specifically, in the last decade, there have been legislative attempts in at least ten states to alter the size of their courts of last resort, with two being “successful.” Moreover, these figures represent an increase from the number of attempts in decades past. This symposium Article makes a gentle intervention in the larger debate about court packing and the consideration of courts more generally in these politically charged times. Specifically, it provides a descriptive account of recent incidents of court packing and unpacking in state supreme courts. It then examines potential commonalities among the states in which such measures have been attempted and then those in which they succeeded. The Article finally considers whether there are lessons to be drawn for those interested in shifting— or keeping static—the size of the U.S. Supreme Court, including members of the Court itself.