Court-Packing Time? Supreme Court Legitimacy and Positivity Theory

Many progressives have decided they need to change the Supreme Court to break the conservative justices’ lock on judicial power. Yet those same progressives disagree about the best way to change the Court. This Essay begins by comparing straight-forward court-packing—adding justices to shift the partisan balance on the Court—to other possible Court changes, such as court-curbing measures that would reduce the Court’s power. Court-packing has multiple advantages over these other possibilities, not the least of which is that even the current Roberts Court would almost certainly hold court-packing, unlike other potential changes, to be constitutional. Even so, some progressives view courtpacking as the most extreme or radical option. They fear that court-packing would undermine the Court’s sociological legitimacy: public approval and acceptance of the Court’s authority and decisions. This Essay therefore delves deeply into a burgeoning area of political science literature on the Court’s legitimacy: Positivity theory states that the American people embrace the Court with a favorable bias of good will. From this perspective, diffuse support for the Court as an institution is resilient, even when support for specific Court actions wavers. A handful of legal scholars have touched on the recent research in this area, but given our current political moment and recent Court developments, a more comprehensive exploration of this complicated literature seems necessary, particularly as it bears on the possibility of court-packing. Ultimately, this research suggests that court-packing is unlikely to weaken the American people’s support for the Court as a judicial institution.