Court Packing Is a Backdoor Amendment, Not Judicial Reform

There are plenty of bad arguments for packing the Supreme Court, but the most revealing one is also the worst: the people pushing it no longer believe they can win under the Constitution.

I do not mean they fear losing the next midterm. I mean they have concluded that Article V's amendment process, the originalist method of reading text, and the old-fashioned work of persuading their fellow citizens are all stacked against them. So instead of amending the Constitution, they want to amend the Court itself.

That is not ordinary political hardball. It is a confession of constitutional bankruptcy.

The Real Issue Is Not Seats; It Is Sovereignty

Court packing, meaning the addition of seats specifically to change the Court's rulings, is usually debated as partisan arithmetic. But the deeper target is the constitutional order.

Article III establishes one supreme Court and says judges shall hold their Offices during good Behaviour. That tenure exists for a reason. Alexander Hamilton explained it in Federalist 78: "The complete independence of the courts of justice is peculiarly essential in a limited Constitution." A written constitution that limits government is worthless unless some independent body has the spine to say no to the political branches.

Hamilton added that the judiciary has no influence over either the sword or the purse. It has neither force nor will, only judgment. Strip away its independence by making its membership a function of whichever party last won an election, and you strip away the only thing that made it a court rather than an agency of the majority.

I am not arguing that nine is a sacred number. The Constitution does not fix the size of the Court, and Congress has adjusted it several times for legitimate structural reasons. But nine is not the issue. The issue is that the number may not be changed as a way to buy the outcomes the political branches want. That is the difference between adjusting a court and corrupting one.

Article V provides the legitimate way to change the Constitution. Amendments require broad, durable majorities in Congress and the states. That is not an accident. The Founders deliberately made the Constitution hard to change because it is fundamental law, not a statute that should bend to every passing gust.

Court packing is an attempt to get the substance of an amendment without fulfilling any of Article V's requirements. If you want the Constitution to say something different, the honest path is to amend the text. The dishonest path is to change the number of judges until the text means what you wish it meant.

That is why court packing is best understood as a backdoor amendment. It aims to rewrite constitutional law without persuading the American people, without winning supermajorities, and without meeting the standard the Founders set for altering the supreme law of the land.

The Seen and the Unseen

Henry Hazlitt taught that every policy must be judged not just by its visible, short-run effect, but by its unseen, long-run consequences. That is exactly how to judge court packing.

The visible benefit is obvious. A majority dissatisfied with the Court gets new justices and, in the short run, gets the rulings it wants. The unseen cost is that the Court stops being a court and becomes a third legislative chamber with an adjustable number of members.

Every political movement that loses at the ballot box or in the amendment process will then have an incentive to add seats. Four becomes six, six becomes eight, nine becomes fifteen. Each majority will pack the Court to entrench its worldview, and each new majority will pack it back. The Supreme Court's authority depends on the belief that its decisions are law, not merely the preferences of the latest set of robes. Destroy that belief, and you destroy the institution.

Milton Friedman liked to say there is no such thing as a free lunch. Court packing is one of the most expensive lunches in American history. It trades a generation of judicial independence for a few years of preferred outcomes.

Think through the spiral. If one party adds four justices to secure a majority, what stops the other party from adding four more the next time it holds Congress? Nothing, except the hope that the other side will show restraint that your side just refused to show. That is not a stable constitutional system. It is a permanent arms race in which the rule of law becomes a bargaining chip in every election.

The Supreme Court's only real power is its moral authority. It cannot enforce its own rulings. It depends on a citizenry that believes the Constitution means something fixed, even when the Court hands down decisions the majority dislikes. Packing the Court forfeits that authority in exchange for temporary partisan advantage.

History Is a Warning, Not a Permission Slip

A fair-minded critic will say that the Constitution does not set the number of justices, and Congress has changed it before. That is true as far as it goes. The First Judiciary Act set six, and Congress created new seats as the country expanded and new circuits were needed. The Reconstruction Congress reduced the Court from ten seats to seven partly to deny Andrew Johnson appointments. That was a political act, and it remains a stain rather than a model.

But the most instructive episode is Franklin Roosevelt's 1937 plan. Roosevelt had just won a landslide and held enormous majorities in Congress, and the Court had struck down key New Deal laws. He proposed adding up to six justices, one for every sitting justice over seventy. Even a Senate controlled by his own party balked. The Senate Judiciary Committee called it a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.

Why did it fail? Because enough people understood that the Court's independence was more important than any short-term political victory. The lesson from history is not that Congress changed the number before, so anything goes. The lesson is that when a popular president tried to pack the Court for results, the republic said no.

The earlier changes in the size of the Court mostly tracked the growth of the federal court system. They were administrative in character, not ideological in purpose. Packing the Court to reverse specific rulings is different in kind, not merely in degree. One adjusts the machinery of justice. The other attacks the impartiality that makes justice meaningful.

The Court Is Already Political Dodge

The other defense is that the Court has never been truly apolitical because justices are nominated by presidents and confirmed by the Senate. That is a category error.

Selection is political. Function should not be.

The whole design of life tenure is to break the chain of political pressure after confirmation. A justice who can be effectively overruled by the next president and Congress adding seats is not independent. He is a delegate serving at the pleasure of the current majority, which is exactly what judges were never supposed to be.

The Framers were not naive about men or majorities. They knew factions would try to capture every branch. That is why they separated powers and gave judges independence. Packing the Court does not make the judiciary more accountable to the people. It makes it more subservient to political power, and those two things are not the same.

In our constitutional republic, the Bill of Rights exists precisely to keep certain questions out of majority control. Converting the Court into an arm of the latest election result does not enhance self-government. It dismantles the guardrail that makes self-government safe.

If judges become politicians in robes whose numbers can be adjusted whenever Congress dislikes a decision, then the Constitution no longer constrains government. It becomes a suggestion that majorities may ignore whenever they have the votes.

The Rule of Law Is the Real Loser

Friedrich Hayek spent much of his life explaining the difference between the rule of law and the rule of men. The rule of law means government is bound by fixed, knowable rules. The moment the meaning of the nation's highest law depends on how many judges the majority chooses to add, we have crossed from law into arbitrary power.

That is the quiet catastrophe. The ordinary American may not follow every Supreme Court case, but he relies on the fact that his rights do not evaporate when the other party wins. He relies on the fact that a contract, a church, a gun, a business, or a prayer can be defended by a court that is not simply doing what the latest polls demand. If the Court becomes a political body with a rotating membership based on who holds Congress, then rights become privileges granted by the powerful and revoked by the next set of powerful people.

John Adams described the American experiment as a government of laws, and not of men. Court packing is the opposite. It substitutes manpower for law, counting seats instead of counting votes for an amendment.

The Supreme Court has no army. It has no budget to withhold. Its power rests entirely on the conviction that its decisions are grounded in the Constitution, not in the preferences of whoever picked the justices. Once that conviction collapses, the Court becomes just another political prize, and the Constitution becomes a document that means whatever the latest majority wants it to mean.

The Answer Is Article V, Not Arithmetic

There is a perfectly legitimate answer to a Supreme Court decision you think is wrong. Persuade your fellow citizens. Elect presidents and senators who share your view. If you want the Constitution to say something different, propose an amendment and make your case to the American people and to the states.

That is hard. It is supposed to be hard. The Founders made it hard because a constitutional republic is not a machine for maximizing the power of the latest majority. It is a structure for preserving liberty over the long run.

Court packing is an admission that the cause cannot meet that standard. It is an attempt to change the judge instead of the law, the institution instead of the argument. It should be rejected, not because the current Court is infallible, but because the alternative is not a court at all.

If we allow the number of justices to become a routine tool for achieving outcomes, we will not get a fairer Court. We will get a bigger one, a more servile one, and eventually no independent judiciary at all. And at that point, the question will not be who sits in the marble temple. The question will be whether we still have a republic worth arguing about.

The Founders gave us a way to change the Constitution, and they gave us a way to check the Court. Both require patience, persuasion, and principle. Court packing offers none of those things. It promises immediate results and delivers long-term ruin. That is not a reform. It is a surrender.