Don’t Pack the Courts

Progressives responding to Supreme Court Justice Anthony Kennedy’s retirement with a proposal for court packing might argue that there’s nothing especially unusual about the proposal. The historian Jean Edward Smith has referred to packing, with some exaggeration, as a “hallowed tradition” in American politics. It has occurred a number of times, from the early days of the republic through, most famously, the administration of Franklin D. Roosevelt. Not too long after the election of Donald Trump, the law professor Steven Calabresi and his co-author Shams Hirji advanced just this suggestion as a means of reversing the Obama administration’s achievements and policies.

In fact, many Democrats and progressives argue that the Republicans have already embarked on a kind of court-packing scheme. The Senate Republican majority took a seat away from the Obama presidency—namely that for which Judge Merrick Garland was nominated. So with Justice Antonin Scalia’s death and Kennedy’s retirement, the Garland seat hijacking has given them two seats to fill. Call it reverse packing, but it’s a close cousin to packing itself. Progressives pursuing a packing strategy