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  • Ashley Baker

Court Packing Schemes Aim to Influence Chief Justice

Op-ed by CFJ president Curt Levey in Fox News:

Angry about Brett Kavanaugh and Merrick Garland and facing the prospect of a conservative-leaning Supreme Court for years to come, leading Democrats, law professors, and progressives activists are brimming with schemes to restructure the Court. But their proposals – court packing, term limits for justices, and the like – stand little chance of being enacted anytime soon, suggesting that they may have more immediate motives.

...Tampering with the Supreme Court's structure is a bad idea. Turnabout, when the government changes hands, would reduce the Court to a plaything of the other branches.

Fortunately, restructuring proposals have no chance of being enacted now and little chance in the longer term. Because they are aimed at dislodging the Court's center-right majority, passage would depend entirely on Democrat votes. Even if no constitutional amendment were needed, enactment would require a Democrat president combined with a substantial Democrat majority in both houses of Congress – not all Democrats will be willing to tamper with a 150-year-old norm – as well as the elimination of the Senate filibuster.

That raises the question of why liberals are advocating so enthusiastically for what is essentially a pipe dream. Anger and politics surely provide part of the answer. But so does the knowledge that aggressively pushing restructuring schemes might cause Chief Justice John Roberts enough concern to distance himself from the Supreme Court's conservative bloc in an attempt to alleviate the pressure coming from the left. Such a shift, after all, is progressives' only real hope of avoiding a conservative majority.

A recent research study found that "Court-curbing proposals ramp up when proposers perceive that they can receive more favorable policy outcomes by threatening the institution." In turn, those threats cause "the Court to limit its use of judicial review – it is less likely to strike down legislation when under siege." This effect is small for associate justices but significant for chief justices, who "may vote in ways that appear counter to [their] ideological preferences" as a result...


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