PACKING AND UNPACKING STATE COURTS.

• Author: Levy, Marin K.

ABSTRACT

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.

TABLE OF CONTENTS INTRODUCTION I. THE DEBATE OVER COURT PACKING AND UNPACKING II. COURT PACKING AND UNPACKING AT THE STATE LEVEL A. States that Have Changed and Attempted to Change the Size of Their Highest Courts 1. Court-Packing Attempts and Successes 2. Court-Unpacking Attempts and Successes B. Observations About States that Changed and Attempted to Change Their Courts (and Those that Did Not) III. LESSONS FOR THE LARGER DEBATE AND THE COURTS THEMSELVES CONCLUSION INTRODUCTION

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 "just cannot do." (1) Even though the Constitution's text does not directly prohibit expanding or contracting the size of courts to change their political makeup, many have argued that there is a longstanding norm or convention against doing so. (2) This de facto prohibition largely stems from a commitment to judicial independence and a sense that court packing would "undermine the ... system of checks and balances" enshrined in our Constitution. (3) And so (the argument goes), even though the President and Congress might otherwise be tempted to add or subtract seats to affect the Court's ideological composition, for reasons related to the Constitution and history they should not, meaning for reasons related to politics they cannot. (4)

But even the strongest norms are susceptible to pressure, (5) and recent moves by scholars and politicians are calling the conventional wisdom about court packing into question. Several law professors have recently put forward proposals that would increase the size of the rise, as the figures reported here represent an increase from the number of attempts in decades past. (11)

This symposium Article seeks to make a gentle intervention in the larger debate about court packing, and the consideration of courts more generally in these politically charged times. It begins in Part I by providing a brief overview of the court-packing debate--and particularly the recent suggestions that court packing be taken up once again. It then turns in Part II to offer a descriptive account of recent incidents of court packing and unpacking at the state level. As part of this discussion, this symposium Article examines potential commonalities among the states in which such measures have been attempted and then those in which they ultimately succeeded. Part III 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.

1. THE DEBATE OVER COURT PACKING AND UNPACKING

   The starting point for discussions over court packing (12) is almost invariably President Franklin D. Roosevelt's ill-fated attempt to increase the size of the Supreme Court in 1937. Feeling both constrained by a Court that was declaring many of his New Deal programs unconstitutional (13) and emboldened by his recent electoral victory--a "landslide" (14)--FDR proposed a bill to add one Justice to the Court for each one over the age of seventy who did not retire within six months (up to fifteen Justices total). (15) As history is told, the Justices took notice and began upholding various programs and regulations of the like they had previously declared unconstitutional--the so-called "switch in time that saved ... nine." (16) FDR's plan to expand the Court "went down to defeat," (17) and was cast as a "political disaster." (18)

   Given the notoriety of Roosevelt's plan, one could be forgiven for skimming over the fact that the Court has not always been composed of nine Justices. Indeed, as others have well documented, Congress repeatedly altered the size of the Supreme Court in the 1800s--and did so, at least in part, "for partisan reasons." (19)

   The Supreme Court was initially set at six Justices by the Judiciary Act of 1789. (20) That figure changed in 1801, when the outgoing Federalist Congress passed the infamous Judiciary Act of that year (also known as the "Midnight Judges Act" (21)), which reduced the Court to five Justices by attrition (22) (an apparent attempt to rob the incoming president, Thomas Jefferson, of making the next appointment). (23) 1802 saw the formal restoration of the sixth seat, courtesy of the Repeal Act of that year. (24) The Court's size steadily increased over the next half century--first rising to seven Justices in 1807, (25) and then to nine Justices in 1837. (26) Congress expanded the Supreme Court to ten in 1863 (27)--a move understood to allow President Abraham Lincoln to shift the Court favorably toward the Republican agenda at the time. (28) Following President Lincoln's assassination and Andrew Johnson's assumption of the office, Congress, in 1866, "unpacked" the Court--reducing the number of seats to seven. (29) Three years later, and with a new Republican President, Ulysses S. Grant, in office, the Republican Congress increased the size of the Court to nine Justices. (30) Notwithstanding FDR's attempts to have it be otherwise, the Court has held constant at nine seats ever since, for 150 years.

   Despite a repeated pattern of expansion and contraction in the Court's first hundred years, many have argued in this century that the Court can no longer be altered for political gain. (31) This turnabout can be largely traced back to FDR's failed attempt to pack the Court and its aftermath. As Tara Grove has persuasively written, government officials--Democrat and Republican--"increasingly treated Roosevelt's 1937 Court-packing plan as a negative precedent" in the decades that followed, which in turn led to it being understood as "off the table" in more recent times. (32) In other words, FDR's court-packing proposal became viewed more and more as something he should not have put forward, making any subsequent attempt at court packing less and less likely.

   And yet, as noted at the outset, there is something of a push-pull relationship between the positive and the normative when it comes to the court-packing debate. Once such reforms became taboo, they in turn became precisely the sort of thing one could accuse the political opposition of attempting, thereby justifying any future attempt to "pack the courts" in response. (33) Indeed, as Grove catalogues, Republicans charged Democrats with court packing in 2013, when the Senate Democratic majority altered the traditional filibuster rule, thereby enabling lower federal court judge confirmation by majority vote--and specifically enabling President Obama to fill three vacancies on the D.C. Circuit. (34) Although the Democrats disputed the claims of court packing at the time--President Obama emphasized that "[w]e're not adding seats here.... I didn't just wake up one day and say, let's add three seats to the [D.C. Circuit]" (35)--the Republicans continued to cast the episode in those terms. (36) Then, when the Republicans blocked the nomination of Judge Merrick Garland to the Supreme Court upon the death of Justice Scalia, Senator Lindsey Graham brought forward the purported justification: "I did tell (then-Senate Majority Leader) Harry Re id and the [P] resident that the consequence of changing the rules in the Senate to pack the [C]ourt will come back to haunt them." (37)

   This brings us to the present moment in the court-packing debate. Although those on the political right might argue that the failed Garland nomination was the "tit" for the Democrats' earlier filibuster "tat," (38) many of those on the political...