In our intensely polarized politics, each side expects the other side to escalate the conflict, and each therefore has an excuse to escalate first. It’s good to find a sensible opportunity to de-escalate.
Progressives who are upset by the conservative transformation of the Supreme Court are understandably tempted to press the next Democratic president and the next Democratic Congress to “pack the Court”—to add new seats in order to enable the president to establish a liberal majority on the Court. But such an effort, if it were to succeed in the very short term, would have severe long-term consequences: It would undermine the legitimacy of an institution essential to the rule of law. It would initiate a series of expansions that would destroy the capacity of the Court to operate as a deliberative judicial body. And, because it couldn’t happen without eviscerating the Senate’s filibuster, it would empower transient majorities in Congress to whipsaw the country between sweeping conservative and liberal agendas.
Now is the time to eliminate the temptation. Progressives should join with conservatives in adopting a constitutional amendment that would enshrine the number of Supreme Court justices at nine.
***
The Supreme Court has had nine seats for more than 150 years, since 1869. That number has acquired the stature of a constitutional norm—something that, although not mandated by the Constitution, is accepted as a basic feature of our governmental system.
Weighty reasons might justify a departure from the norm. But as FDR learned nearly a century ago when his own Court-packing plan collapsed, a desire to alter the ideological composition of the Court doesn’t qualify. Polling confirms what Joe Biden and Kamala Harris evidently discerned during their presidential campaigns in 2020 and 2024: Court-packing is deeply unpopular with the public.
Even though Court-packing is deeply unpopular, a Democratic president who is blessed with Democratic majorities in the House and in the Senate would have difficulty resisting the temptation to resort to it. The same might soon be true for a Republican president with Republican majorities in Congress. Although talk of Court-packing has so far been almost entirely on the Left, it’s easy to see how a Republican president, whether frustrated by defeats in the Supreme Court or eager to perpetuate a conservative majority for years to come, might want to name several new justices to the Court.
Packing the Court would threaten to destroy its legitimacy as an institution independent of politics. To be sure, the process of nominating and confirming Supreme Court justices is inherently and inescapably political. But it’s one thing to have politics—and, yes, political hardball—shape how vacancies are filled as they arise. It’s quite another to have politics create a whole new set of seats for the purpose of transforming the Court.
There is also no reason to think that Court-packing would be a “one and done” enterprise. On the contrary, the next time the losing party won control of the presidency and Congress, another round of Court-packing would be likely to ensue. As the Court expanded from nine to fifteen to twenty-one to thirty-seven members and beyond, it would have severe difficulty exercising its core legal duties of interpreting and applying the law, and it would increasingly become, and be perceived as, an essentially political body.
The adoption of Court-packing legislation would also almost certainly require the abolition of the Senate filibuster—its rule requiring 60 votes for cloture on legislation. The Senate filibuster operates to ensure that transformative legislation has a very broad base of support. If it is abolished, we could face a new era of destabilizing swings from one end of the political spectrum to the other.
Progressives and conservatives can join together now to avert these dangers by supporting a constitutional amendment that states that there shall be nine seats on the Supreme Court.
***
By barring Court-packing, progressives wouldn’t be giving up their efforts to establish a liberal majority on the Court. On the contrary. By jettisoning an unpopular option and embracing the constitutional norm of nine justices, they would enhance their prospects of transforming the Court the old-fashioned way: by winning presidential elections and by securing a Senate majority.
In our intensely polarized politics, each side expects the other side to escalate the conflict, and each therefore has an excuse to escalate first. It’s good to find a sensible opportunity to de-escalate.
Progressives who are upset by the conservative transformation of the Supreme Court are understandably tempted to press the next Democratic president and the next Democratic Congress to “pack the Court”—to add new seats in order to enable the president to establish a liberal majority on the Court. But such an effort, if it were to succeed in the very short term, would have severe long-term consequences: It would undermine the legitimacy of an institution essential to the rule of law. It would initiate a series of expansions that would destroy the capacity of the Court to operate as a deliberative judicial body. And, because it couldn’t happen without eviscerating the Senate’s filibuster, it would empower transient majorities in Congress to whipsaw the country between sweeping conservative and liberal agendas.
Now is the time to eliminate the temptation. Progressives should join with conservatives in adopting a constitutional amendment that would enshrine the number of Supreme Court justices at nine.
***
The Supreme Court has had nine seats for more than 150 years, since 1869. That number has acquired the stature of a constitutional norm—something that, although not mandated by the Constitution, is accepted as a basic feature of our governmental system.
Weighty reasons might justify a departure from the norm. But as FDR learned nearly a century ago when his own Court-packing plan collapsed, a desire to alter the ideological composition of the Court doesn’t qualify. Polling confirms what Joe Biden and Kamala Harris evidently discerned during their presidential campaigns in 2020 and 2024: Court-packing is deeply unpopular with the public.
Even though Court-packing is deeply unpopular, a Democratic president who is blessed with Democratic majorities in the House and in the Senate would have difficulty resisting the temptation to resort to it. The same might soon be true for a Republican president with Republican majorities in Congress. Although talk of Court-packing has so far been almost entirely on the Left, it’s easy to see how a Republican president, whether frustrated by defeats in the Supreme Court or eager to perpetuate a conservative majority for years to come, might want to name several new justices to the Court.
Packing the Court would threaten to destroy its legitimacy as an institution independent of politics. To be sure, the process of nominating and confirming Supreme Court justices is inherently and inescapably political. But it’s one thing to have politics—and, yes, political hardball—shape how vacancies are filled as they arise. It’s quite another to have politics create a whole new set of seats for the purpose of transforming the Court.
There is also no reason to think that Court-packing would be a “one and done” enterprise. On the contrary, the next time the losing party won control of the presidency and Congress, another round of Court-packing would be likely to ensue. As the Court expanded from nine to fifteen to twenty-one to thirty-seven members and beyond, it would have severe difficulty exercising its core legal duties of interpreting and applying the law, and it would increasingly become, and be perceived as, an essentially political body.
The adoption of Court-packing legislation would also almost certainly require the abolition of the Senate filibuster—its rule requiring 60 votes for cloture on legislation. The Senate filibuster operates to ensure that transformative legislation has a very broad base of support. If it is abolished, we could face a new era of destabilizing swings from one end of the political spectrum to the other.
Progressives and conservatives can join together now to avert these dangers by supporting a constitutional amendment that states that there shall be nine seats on the Supreme Court.
***
By barring Court-packing, progressives wouldn’t be giving up their efforts to establish a liberal majority on the Court. On the contrary. By jettisoning an unpopular option and embracing the constitutional norm of nine justices, they would enhance their prospects of transforming the Court the old-fashioned way: by winning presidential elections and by securing a Senate majority.
In our intensely polarized politics, each side expects the other side to escalate the conflict, and each therefore has an excuse to escalate first. It’s good to find a sensible opportunity to de-escalate.
Progressives who are upset by the conservative transformation of the Supreme Court are understandably tempted to press the next Democratic president and the next Democratic Congress to “pack the Court”—to add new seats in order to enable the president to establish a liberal majority on the Court. But such an effort, if it were to succeed in the very short term, would have severe long-term consequences: It would undermine the legitimacy of an institution essential to the rule of law. It would initiate a series of expansions that would destroy the capacity of the Court to operate as a deliberative judicial body. And, because it couldn’t happen without eviscerating the Senate’s filibuster, it would empower transient majorities in Congress to whipsaw the country between sweeping conservative and liberal agendas.
Now is the time to eliminate the temptation. Progressives should join with conservatives in adopting a constitutional amendment that would enshrine the number of Supreme Court justices at nine.
***
The Supreme Court has had nine seats for more than 150 years, since 1869. That number has acquired the stature of a constitutional norm—something that, although not mandated by the Constitution, is accepted as a basic feature of our governmental system.
Weighty reasons might justify a departure from the norm. But as FDR learned nearly a century ago when his own Court-packing plan collapsed, a desire to alter the ideological composition of the Court doesn’t qualify. Polling confirms what Joe Biden and Kamala Harris evidently discerned during their presidential campaigns in 2020 and 2024: Court-packing is deeply unpopular with the public.
Even though Court-packing is deeply unpopular, a Democratic president who is blessed with Democratic majorities in the House and in the Senate would have difficulty resisting the temptation to resort to it. The same might soon be true for a Republican president with Republican majorities in Congress. Although talk of Court-packing has so far been almost entirely on the Left, it’s easy to see how a Republican president, whether frustrated by defeats in the Supreme Court or eager to perpetuate a conservative majority for years to come, might want to name several new justices to the Court.
Packing the Court would threaten to destroy its legitimacy as an institution independent of politics. To be sure, the process of nominating and confirming Supreme Court justices is inherently and inescapably political. But it’s one thing to have politics—and, yes, political hardball—shape how vacancies are filled as they arise. It’s quite another to have politics create a whole new set of seats for the purpose of transforming the Court.
There is also no reason to think that Court-packing would be a “one and done” enterprise. On the contrary, the next time the losing party won control of the presidency and Congress, another round of Court-packing would be likely to ensue. As the Court expanded from nine to fifteen to twenty-one to thirty-seven members and beyond, it would have severe difficulty exercising its core legal duties of interpreting and applying the law, and it would increasingly become, and be perceived as, an essentially political body.
The adoption of Court-packing legislation would also almost certainly require the abolition of the Senate filibuster—its rule requiring 60 votes for cloture on legislation. The Senate filibuster operates to ensure that transformative legislation has a very broad base of support. If it is abolished, we could face a new era of destabilizing swings from one end of the political spectrum to the other.
Progressives and conservatives can join together now to avert these dangers by supporting a constitutional amendment that states that there shall be nine seats on the Supreme Court.
***
By barring Court-packing, progressives wouldn’t be giving up their efforts to establish a liberal majority on the Court. On the contrary. By jettisoning an unpopular option and embracing the constitutional norm of nine justices, they would enhance their prospects of transforming the Court the old-fashioned way: by winning presidential elections and by securing a Senate majority.
In our intensely polarized politics, each side expects the other side to escalate the conflict, and each therefore has an excuse to escalate first. It’s good to find a sensible opportunity to de-escalate.
Progressives who are upset by the conservative transformation of the Supreme Court are understandably tempted to press the next Democratic president and the next Democratic Congress to “pack the Court”—to add new seats in order to enable the president to establish a liberal majority on the Court. But such an effort, if it were to succeed in the very short term, would have severe long-term consequences: It would undermine the legitimacy of an institution essential to the rule of law. It would initiate a series of expansions that would destroy the capacity of the Court to operate as a deliberative judicial body. And, because it couldn’t happen without eviscerating the Senate’s filibuster, it would empower transient majorities in Congress to whipsaw the country between sweeping conservative and liberal agendas.
Now is the time to eliminate the temptation. Progressives should join with conservatives in adopting a constitutional amendment that would enshrine the number of Supreme Court justices at nine.
***
The Supreme Court has had nine seats for more than 150 years, since 1869. That number has acquired the stature of a constitutional norm—something that, although not mandated by the Constitution, is accepted as a basic feature of our governmental system.
Weighty reasons might justify a departure from the norm. But as FDR learned nearly a century ago when his own Court-packing plan collapsed, a desire to alter the ideological composition of the Court doesn’t qualify. Polling confirms what Joe Biden and Kamala Harris evidently discerned during their presidential campaigns in 2020 and 2024: Court-packing is deeply unpopular with the public.
Even though Court-packing is deeply unpopular, a Democratic president who is blessed with Democratic majorities in the House and in the Senate would have difficulty resisting the temptation to resort to it. The same might soon be true for a Republican president with Republican majorities in Congress. Although talk of Court-packing has so far been almost entirely on the Left, it’s easy to see how a Republican president, whether frustrated by defeats in the Supreme Court or eager to perpetuate a conservative majority for years to come, might want to name several new justices to the Court.
Packing the Court would threaten to destroy its legitimacy as an institution independent of politics. To be sure, the process of nominating and confirming Supreme Court justices is inherently and inescapably political. But it’s one thing to have politics—and, yes, political hardball—shape how vacancies are filled as they arise. It’s quite another to have politics create a whole new set of seats for the purpose of transforming the Court.
There is also no reason to think that Court-packing would be a “one and done” enterprise. On the contrary, the next time the losing party won control of the presidency and Congress, another round of Court-packing would be likely to ensue. As the Court expanded from nine to fifteen to twenty-one to thirty-seven members and beyond, it would have severe difficulty exercising its core legal duties of interpreting and applying the law, and it would increasingly become, and be perceived as, an essentially political body.
The adoption of Court-packing legislation would also almost certainly require the abolition of the Senate filibuster—its rule requiring 60 votes for cloture on legislation. The Senate filibuster operates to ensure that transformative legislation has a very broad base of support. If it is abolished, we could face a new era of destabilizing swings from one end of the political spectrum to the other.
Progressives and conservatives can join together now to avert these dangers by supporting a constitutional amendment that states that there shall be nine seats on the Supreme Court.
***
By barring Court-packing, progressives wouldn’t be giving up their efforts to establish a liberal majority on the Court. On the contrary. By jettisoning an unpopular option and embracing the constitutional norm of nine justices, they would enhance their prospects of transforming the Court the old-fashioned way: by winning presidential elections and by securing a Senate majority.
In our intensely polarized politics, each side expects the other side to escalate the conflict, and each therefore has an excuse to escalate first. It’s good to find a sensible opportunity to de-escalate.
Progressives who are upset by the conservative transformation of the Supreme Court are understandably tempted to press the next Democratic president and the next Democratic Congress to “pack the Court”—to add new seats in order to enable the president to establish a liberal majority on the Court. But such an effort, if it were to succeed in the very short term, would have severe long-term consequences: It would undermine the legitimacy of an institution essential to the rule of law. It would initiate a series of expansions that would destroy the capacity of the Court to operate as a deliberative judicial body. And, because it couldn’t happen without eviscerating the Senate’s filibuster, it would empower transient majorities in Congress to whipsaw the country between sweeping conservative and liberal agendas.
Now is the time to eliminate the temptation. Progressives should join with conservatives in adopting a constitutional amendment that would enshrine the number of Supreme Court justices at nine.
***
The Supreme Court has had nine seats for more than 150 years, since 1869. That number has acquired the stature of a constitutional norm—something that, although not mandated by the Constitution, is accepted as a basic feature of our governmental system.
Weighty reasons might justify a departure from the norm. But as FDR learned nearly a century ago when his own Court-packing plan collapsed, a desire to alter the ideological composition of the Court doesn’t qualify. Polling confirms what Joe Biden and Kamala Harris evidently discerned during their presidential campaigns in 2020 and 2024: Court-packing is deeply unpopular with the public.
Even though Court-packing is deeply unpopular, a Democratic president who is blessed with Democratic majorities in the House and in the Senate would have difficulty resisting the temptation to resort to it. The same might soon be true for a Republican president with Republican majorities in Congress. Although talk of Court-packing has so far been almost entirely on the Left, it’s easy to see how a Republican president, whether frustrated by defeats in the Supreme Court or eager to perpetuate a conservative majority for years to come, might want to name several new justices to the Court.
Packing the Court would threaten to destroy its legitimacy as an institution independent of politics. To be sure, the process of nominating and confirming Supreme Court justices is inherently and inescapably political. But it’s one thing to have politics—and, yes, political hardball—shape how vacancies are filled as they arise. It’s quite another to have politics create a whole new set of seats for the purpose of transforming the Court.
There is also no reason to think that Court-packing would be a “one and done” enterprise. On the contrary, the next time the losing party won control of the presidency and Congress, another round of Court-packing would be likely to ensue. As the Court expanded from nine to fifteen to twenty-one to thirty-seven members and beyond, it would have severe difficulty exercising its core legal duties of interpreting and applying the law, and it would increasingly become, and be perceived as, an essentially political body.
The adoption of Court-packing legislation would also almost certainly require the abolition of the Senate filibuster—its rule requiring 60 votes for cloture on legislation. The Senate filibuster operates to ensure that transformative legislation has a very broad base of support. If it is abolished, we could face a new era of destabilizing swings from one end of the political spectrum to the other.
Progressives and conservatives can join together now to avert these dangers by supporting a constitutional amendment that states that there shall be nine seats on the Supreme Court.
***
By barring Court-packing, progressives wouldn’t be giving up their efforts to establish a liberal majority on the Court. On the contrary. By jettisoning an unpopular option and embracing the constitutional norm of nine justices, they would enhance their prospects of transforming the Court the old-fashioned way: by winning presidential elections and by securing a Senate majority.
In our intensely polarized politics, each side expects the other side to escalate the conflict, and each therefore has an excuse to escalate first. It’s good to find a sensible opportunity to de-escalate.
Progressives who are upset by the conservative transformation of the Supreme Court are understandably tempted to press the next Democratic president and the next Democratic Congress to “pack the Court”—to add new seats in order to enable the president to establish a liberal majority on the Court. But such an effort, if it were to succeed in the very short term, would have severe long-term consequences: It would undermine the legitimacy of an institution essential to the rule of law. It would initiate a series of expansions that would destroy the capacity of the Court to operate as a deliberative judicial body. And, because it couldn’t happen without eviscerating the Senate’s filibuster, it would empower transient majorities in Congress to whipsaw the country between sweeping conservative and liberal agendas.
Now is the time to eliminate the temptation. Progressives should join with conservatives in adopting a constitutional amendment that would enshrine the number of Supreme Court justices at nine.
***
The Supreme Court has had nine seats for more than 150 years, since 1869. That number has acquired the stature of a constitutional norm—something that, although not mandated by the Constitution, is accepted as a basic feature of our governmental system.
Weighty reasons might justify a departure from the norm. But as FDR learned nearly a century ago when his own Court-packing plan collapsed, a desire to alter the ideological composition of the Court doesn’t qualify. Polling confirms what Joe Biden and Kamala Harris evidently discerned during their presidential campaigns in 2020 and 2024: Court-packing is deeply unpopular with the public.
Even though Court-packing is deeply unpopular, a Democratic president who is blessed with Democratic majorities in the House and in the Senate would have difficulty resisting the temptation to resort to it. The same might soon be true for a Republican president with Republican majorities in Congress. Although talk of Court-packing has so far been almost entirely on the Left, it’s easy to see how a Republican president, whether frustrated by defeats in the Supreme Court or eager to perpetuate a conservative majority for years to come, might want to name several new justices to the Court.
Packing the Court would threaten to destroy its legitimacy as an institution independent of politics. To be sure, the process of nominating and confirming Supreme Court justices is inherently and inescapably political. But it’s one thing to have politics—and, yes, political hardball—shape how vacancies are filled as they arise. It’s quite another to have politics create a whole new set of seats for the purpose of transforming the Court.
There is also no reason to think that Court-packing would be a “one and done” enterprise. On the contrary, the next time the losing party won control of the presidency and Congress, another round of Court-packing would be likely to ensue. As the Court expanded from nine to fifteen to twenty-one to thirty-seven members and beyond, it would have severe difficulty exercising its core legal duties of interpreting and applying the law, and it would increasingly become, and be perceived as, an essentially political body.
The adoption of Court-packing legislation would also almost certainly require the abolition of the Senate filibuster—its rule requiring 60 votes for cloture on legislation. The Senate filibuster operates to ensure that transformative legislation has a very broad base of support. If it is abolished, we could face a new era of destabilizing swings from one end of the political spectrum to the other.
Progressives and conservatives can join together now to avert these dangers by supporting a constitutional amendment that states that there shall be nine seats on the Supreme Court.
***
By barring Court-packing, progressives wouldn’t be giving up their efforts to establish a liberal majority on the Court. On the contrary. By jettisoning an unpopular option and embracing the constitutional norm of nine justices, they would enhance their prospects of transforming the Court the old-fashioned way: by winning presidential elections and by securing a Senate majority.
About the Author
Edward Whelan
Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history. Whelan directs EPPC’s program on The Constitution, the Courts, and the Culture. As a contributor to National Review Online’s Bench Memos blog, Whelan has been a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law. In his Confirmation Tales newsletter, he draws lessons from his three decades of experience in judicial-confirmation battles.
About the Author
Edward Whelan
Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history. Whelan directs EPPC’s program on The Constitution, the Courts, and the Culture. As a contributor to National Review Online’s Bench Memos blog, Whelan has been a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law. In his Confirmation Tales newsletter, he draws lessons from his three decades of experience in judicial-confirmation battles.
About the Author
Edward Whelan
Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history. Whelan directs EPPC’s program on The Constitution, the Courts, and the Culture. As a contributor to National Review Online’s Bench Memos blog, Whelan has been a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law. In his Confirmation Tales newsletter, he draws lessons from his three decades of experience in judicial-confirmation battles.
About the Author
Edward Whelan
Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history. Whelan directs EPPC’s program on The Constitution, the Courts, and the Culture. As a contributor to National Review Online’s Bench Memos blog, Whelan has been a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law. In his Confirmation Tales newsletter, he draws lessons from his three decades of experience in judicial-confirmation battles.
About the Author
Edward Whelan
Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history. Whelan directs EPPC’s program on The Constitution, the Courts, and the Culture. As a contributor to National Review Online’s Bench Memos blog, Whelan has been a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law. In his Confirmation Tales newsletter, he draws lessons from his three decades of experience in judicial-confirmation battles.
About the Author
Edward Whelan
Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history. Whelan directs EPPC’s program on The Constitution, the Courts, and the Culture. As a contributor to National Review Online’s Bench Memos blog, Whelan has been a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law. In his Confirmation Tales newsletter, he draws lessons from his three decades of experience in judicial-confirmation battles.
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