Home / General / The hopeless incoherence of opposition to expanding the Supreme Court

The hopeless incoherence of opposition to expanding the Supreme Court


I haven’t written about judicial reform a lot recently, mostly because of the failure in 2020 to win majorities large enough to make it even a remote possibility. But it’s still a good idea, and the Court’s defenders are still writing nonsense in its defense:

Federal judges are not politicians. They do not identify with political parties or the president who appointed them. Judges are human, though, and some may occasionally fall short of strict political impartiality. But in our experience, the overwhelming majority of judges — who may have different life experiences and different points of view — go to extraordinary lengths to be fair adjudicators.


The impartial judge is the Constitution’s ideal, and from our experiences as federal judges we can happily report that it is also the norm, even if critics of individual decisions might think otherwise. Court-packing would seriously damage that norm. 

That “occasionally fall short of strict political impartiality” bit is doing an incredible amount of work, less than a year after the Supreme Court just re-wrote the Voting Rights Act to make changes Congress very specifically declined to make.

Anyway, there’s a fundamental contradiction at work in these defenses. If federal judges are by definition impartial and apolitical, how can court-packing change that?

The idea that judges are impartial and apolitical if they fill slots that come up at random but not if they’re newly created ones makes no sense if you think about it for more than a few seconds. (Both Carter and Reagan “packed” the circuit courts, so how can those judges be impartial?) The whole idea of apolitical appellate judges is just adults pretending the Easter Bunny is real. If it was true, Merrick Garland would be on the Court today, and everyone knows it.

This, however, takes things to 11:

Term limits, by providing each president with two Supreme Court appointments in every four-year presidential term, would risk enmeshing the appointments in the presidential election cycle, further politicizing the appointment process.

It seems possible, even likely, that presidential candidates would announce their Supreme Court choices as part of the campaign, turning potential nominations into political fodder. 

Donald Trump DID THIS! Very prominently and famously! With no term limits! It probably won him the election! Am I losing my goddamned mind here? Anyway, hoping Santa will be coming by tonight with the mortgage payment.

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