How would court-packing affect judicial independence and precedent?
Executive summary
Court‑packing—changing the number of judges to shift a court’s ideological balance—has historically produced swift changes in court outcomes and risks eroding judicial independence and public legitimacy [1] [2]. Comparative and empirical studies show expansions are more likely where judicial independence and political competition are weak, and that newly appointed judges are difficult to remove later, making the change durable [3] [1].
1. Court‑packing: what it does, instantly and durably
Altering a court’s size is a direct way to achieve a friendly majority and can produce an immediate ideological shift in decisions because political actors appoint justices sympathetic to their aims; once appointed, judges enjoy independence that makes reversals difficult, rendering the effect long‑lasting [1]. Historical attempts in the U.S. — most famously FDR’s 1937 Judicial Procedures Reform Bill — illustrate both the immediate political motive (to secure favorable rulings) and the strong backlash that can follow [2] [4].
2. How it undermines judicial independence and separation of powers
Scholars and institutions warn that intentionally changing bench composition for partisan ends blurs the line between political branches and the judiciary, weakening the court’s role as an impartial check on executive and legislative power; critics describe that as judicial manipulation or capture, which damages the rule of law and concentrates power [5] [6]. Contemporary opponents argue that packing would permit presidents and Congresses to reshape the judiciary as a policy tool, threatening the independence the Framers and later congressional reports defended [6] [7].
3. Empirical patterns: where packing happens and why
A systematic study of every state supreme‑court size change since 1789 finds court expansion most likely in states with low political competition and weaker selection/retention systems—conditions that already correlate with lower judicial independence—suggesting that packing is both a symptom of weakened institutions and a reinforcing cause of dependence [3]. International and comparative work shows that leaders who manipulate courts can rapidly centralize power and erode accountability, as seen in recent waves of judicial manipulation in countries like Hungary, Poland and Turkey [5] [1].
4. Precedent and the doctrine of stare decisis: the legal fallout
Court‑packing does not itself rewrite precedent, but a newly constituted court is more likely to revisit and overturn established decisions; scholarly work notes that political leaders achieve swift doctrinal change by altering membership and that precedent is vulnerable when courts change composition to reflect partisan aims [1]. Recent U.S. Supreme Court behavior — including willingness to reconsider long‑standing precedents — underscores how changes in personnel can translate quickly into doctrinal reversals [8] [9].
5. Legitimacy, public confidence, and political backlash
The 1937 episode shows how attempts to expand courts can provoke broad political backlash and damage institutional legitimacy even when proponents seek corrective policy outcomes [2] [4]. Opponents warn the practice is a “slippery slope” that may be used in turn by future majorities, worsening polarization and reducing public trust in judicial impartiality [10] [11].
6. Counterarguments: reformers’ claims and limits of the critique
Proponents argue that changing court size is constitutionally permissible, can increase diversity and correct partisan entrenchment, and that the Constitution leaves the number of justices to Congress [1] [12]. Some scholars emphasize historical precedent for altering court size and stress that court‑packing is a legal tool rather than an automatic assault on independence [13]. Available sources do not mention specific procedural safeguards reformers would pair with expansion that could mitigate the independence concerns.
7. What the evidence implies for policy choices
The scholarly and comparative literature implies that any court expansion undertaken in a polarized environment will likely shift doctrine quickly, be difficult to reverse, and carry material costs to judicial independence and public confidence [3] [1] [5]. Policymakers who contemplate expansion face a tradeoff: immediate corrective power versus long‑term institutional damage and reciprocal uses of the same tactic by future majorities [7] [14].
Limitations: this analysis relies on historical accounts, comparative scholarship and contemporary reporting about judicial behavior and precedent; available sources do not provide an empirical forecast specific to any hypothetical new expansion at the federal level beyond the general patterns and historical lessons cited [3] [1] [2].