Dear Readers:
Our ongoing discussion of Supreme Court reform continues today with a contribution from Gregg Nunziata, former chief nominations counsel on the Senate Judiciary Committee and executive director of the Society for the Rule of Law. The series began with Andy Craig’s case for expansion as an unfortunate necessity, and continued with Ilya Somin’s opposing view. As with every installment in this series, we aim to air the full range of good-faith ideas on this consequential issue. Additional contributions, including the case for bigger changes to the Court as an institution, will be coming soon, after which Andy will offer his response.
Shikha Dalmia
Editor-in-Chief
Earlier this year in The UnPopulist, Andy Craig offered a measured—more in sadness than in anger—case for packing the Supreme Court, paired with a constitutional amendment to prevent an endless cycle of retaliatory future court packing.
I admire Craig’s commitment to liberty and share his fear about the dangerous moment in which we find ourselves. Craig’s case does not rely on specious arguments about supposed Republican court packing, improved court administration, or matching the number of seats to the number of circuit courts of appeals. He’s frank about his intent to change the jurisprudence of the Court by adding justices, a gambit he concedes is dangerous, and he attempts to mitigate the dangers of his proposal.
Though well-meaning, Craig overstates the case against the Court’s jurisprudence, mistakes the judiciary as a primary locus of constitutional disorder, and fails to reckon with the broader damage his plan would invite.
The idea of court packing has broad support from Democrats, including leading presidential candidates and the presumptive future Speaker of a Democratic House, as Craig notes. All but one House Democrat recently voted against a Republican-proposed amendment to the Constitution to permanently fix the Court’s size.
Our system of ordered liberty depends on separation of powers, each checking the other. Montesquieu, from whom the Founders drew inspiration, emphasized the indispensability of an independent judiciary. “There is no liberty, if the judiciary power be not separated from the legislative and executive.” If political and partisan interests can shape the meaning and application of law, individuals stand naked before power and the rule of law crumbles.
Judicial independence is not premised on confidence that judges always reach the correct answer. Judges will sometimes be wrong, sometimes badly so. (I have no hesitation in regarding Dred Scott, Roe v. Wade, and Trump v. United States, for instance, as abominations.) But judicial independence means that judges may apply the law equally, without fear or favor, including holding the government itself to account.
Judicial independence is a hard-won but easily lost feature of liberal democracy. As we’ve seen in Europe, Latin America, and elsewhere, aspiring autocrats prioritize delegitimizing, intimidating, and weakening the judiciary. Court packing would, inescapably, have this effect, which is why a Democratic Congress rejected Franklin Roosevelt’s court-packing proposal, calling it a “direct violation of the spirit of the American Constitution.” As in medicine, the operating motto for any intervention in statecraft is: first, do no harm.
The burden one must meet before making high-risk interventions into essential systems is extraordinarily high. It cannot be met here.
Craig believes that the risk of court packing is worth taking because the Court has become radicalized and enabled Trump’s abuses of power. In a response to Craig, Ilya Somin makes the case that the Roberts Court isn’t nearly as bad as Craig suggests. I agree with much of Somin’s account and take an even more positive view. The judiciary—including many conservative and Trump-appointed judges on the district and circuit courts—has been the preeminent bulwark against Trumpian abuses. This includes the Supreme Court that has issued crucial rulings against the president’s marquee priorities: unlawful tariffs, deportation without due process, redefinition of citizenship, unlawful deployment of the military to Chicago and, most recently, attempts to interfere in mail-in voting.
This is not to say the Court has been perfect. I have written elsewhere that conservative jurisprudence has excessively indulged executive power for too long. This Court has too willingly temporarily resolved matters on the emergency, or so-called “shadow docket,” in the president’s favor. The Court, and the conservative legal movement, should revisit habits of restraint that an unscrupulous executive now exploits.
The Court’s invention of presidential immunity from criminal prosecution, out of whole cloth in Trump v. United States, is one of the worst Supreme Court decisions in a generation. Still, the opinion leaves a great deal of ambiguity, and the Court may well cabin its impact over the long term. Further, however bad the decision, it was plainly driven by a misguided attempt to protect, not subvert, the balance of power. (I have more positive views of the other cases Craig condemns, including Callais and Slaughter—the so-called unitary executive ruling.)
Craig thinks that it does not matter whether the Court’s worst decisions result from faulty reasoning or from corrupt partisan gamesmanship, but surely it must. The latter situation would present a real cancer in our constitutional system. But the former is simply the inevitable result of a legitimate system sometimes arriving at the wrong answer, hardly worthy of chemotherapy.
The question is not whether the Court has made terrible decisions. It has. The question is whether those decisions demonstrate that the Court is institutionally corrupted and captured by partisan interests, and whether it has so lost its way that it poses an imminent danger to ordered liberty. The question must be answered, by any reasonable test, in the negative.
Let’s give it some historical perspective and assume, for a moment, a dimmer view of the Court’s jurisprudence, one closer to Craig’s than to mine. Absent ideological blinders, it’s simply impossible to view the current Court as missing the constitutional mark by a historically aberrant margin. If some liberals today have concerns about the Court, conservatives of 50 years ago had equal, or even graver, ones. The 1973 decision in Roe v. Wade—that conservatives saw as jurisprudentially unsound, anti-democratic, and in the service of an ideological agenda—became emblematic of a Court that had slipped its constitutional leash across a range of issues.
In the latter decades of the 20th century, conservatives saw the judiciary as not just wrong, but as actively taking sides in a polarized country. Across a range of issues—abortion, criminal justice, school busing and affirmative action, religion in public life—the Court appeared to reliably deliver policy victories to the political left while undermining electoral wins by the right. Some conservatives began to speak, provocatively, of The End of Democracy.
While only some would go that far, conservatives and libertarians broadly agreed that the Court had taken a profoundly wrong turn. Compounding this, changes in Senate practice made it increasingly difficult to confirm openly originalist, conservative, or libertarian nominees. Nonetheless, they reshaped the Court through the system, not through shortcuts that undermine it. They invested in scholarship, persuasion, and political organizing which, over time, built a new majority. Whatever errors the Roberts Court has made should be addressed in the same way. In the meantime, as Somin notes, many of the decisions that frustrate court critics might be mitigated, or reversed, by simple legislation.
Craig’s preferred historical analogue is 1866, when Congress temporarily shrank the Court by attrition during the Andrew Johnson administration, before expanding to its current size shortly thereafter. Craig finds this maneuver justified because Johnson nominations might have created a Court “threatening the constitutional settlement itself.”
The mechanisms employed in 1866 (attrition rather than expansion) might be distinguished from today’s proposals. But more to the point, we should be wary if the most relevant historical precedent for a proposed gambit is over 150 years old, in an America drenched with the blood of fratricidal slaughter, and striving to acknowledge the long-denied humanity of millions previously held in bondage. Those circumstances might have justified modifying the size of the Court, but they do not apply today.
Looking to judicial “reforms” as the solution to our present crisis is looking in the wrong place. The other two branches are the bigger problem. The executive has burst its constitutional restraints. Congress has abandoned its obligations. Campaign dynamics create incentives to compound, rather than improve, these dynamics. Court packing is at best a remarkably indirect solution. Worse, it’s nonsensical to respond to executive aggrandizement by offering the next president the chance to dominate the Court.
To be clear, Craig offers his court packing proposal as one idea among many potential reforms highlighted in the pages of The UnPopulist. But, moving from ideas to action, any reform agenda will have to prioritize. A proposal that comes with so many potential downsides while alienating well-meaning right-of-center allies should not advance. Whatever energy and political will is available in the post-Trump years ought to be directed squarely at solving the critical constitutional problems we face. A reform agenda should prioritize limiting executive prerogatives, revitalizing Congress, and shifting political incentives to better align with constitutional design. Much of this, including some bold reforms, could be done by simple legislation.
Craig fears that “a stable post-Trump constitutional settlement cannot survive this Court’s veto.” But this imagines a lawless Court that bears little resemblance to the one we actually have. Congress can do urgent and obvious things like reforming emergency powers, the Insurrection Act, the Vacancies Reform Act, strengthening anti-corruption measures, narrowing policymaking discretion granted to agencies and more without any serious concern about judicial interference. Even as the Court has strengthened the president’s hand over the executive, it has practically begged Congress to pare back executive power. Justice Gorsuch, concurring in the Slaughter case, wrote: “From here, the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong: in Congress and the Courts.” Congress could also pursue bolder reforms like ending partisan gerrymandering, increasing the size of the House of Representatives, and repealing the ban on multimember congressional districts.
Constitutional amendments, especially a reform to the pardon power, deserve serious attention and are not as out of reach as we sometimes imagine, as Craig well understands. An amendment to fix the size of the Court should be among these. The constitutionally indeterminate size of the Supreme Court is a glaring vulnerability in our system, protected only by fast-fraying norms. It will be abused before long, more likely by malevolent authoritarians than by well-meaning classical liberals.
Craig’s proposed constitutional amendment would fix the Court at nine seats, with staggered 18-year terms, only after Democrats have packed the Court. But this would likely fail, a danger he acknowledges but seems willing to live with. But even if it succeeded, the damage of a one-off court packing would be significant and irreversible. Craig’s plan envisions a future where Democrats have swept Republicans from power, perhaps one in which they’ve also scrapped the filibuster and otherwise weakened the position of the legislative minority, leaving only one significant redoubt of conservatism, one brake on the new majority, the judiciary. Craig would have Democrats use a passing majority to wipe that away.
A packed Court would unshackle government in a way that should worry all supporters of liberal democracy. Craig tells us that an “expanded Court is the interim guarantee that the work is judged by law rather than by participants protecting a project.” But the entire point of court packing is to protect a project.
The erasure of conservative power in the federal government, one earned through generations of patient and difficult work, would also supercharge our already dangerous political polarization. It would enhance the winner-takes-all perception of elections that has already justified so many abuses of power. If Craig’s amendment also passed, taking additional Court expansion off the table, other dangerous norm-breaking options would move to the center, including those striking at judicial independence, such as jurisdiction stripping or defying Court orders. After a court packing, presidents and Senators may turn more readily to the nomination and confirmation of nakedly partisan actors to the judiciary. The faith in the legitimacy of the judiciary (still substantial) would crumble. Acceptance of the legitimacy of the government itself might become harder as an alienated political minority is more likely to think of the government as the enemy.
Craig believes that sidelining the present Court majority in order to allow for a constitutional settlement would strengthen liberal democracy. In fact, the opposite may be the case. On the other hand, after an electoral triumph, if Democrats were to leave the Court alone—or even agree with Republicans to support the Keep Nine amendment (without pre-packing)—they would send a powerful message of accommodation and set the stage for durable reforms to strengthen our liberal democracy.
The important question is not whether we approve of the Roberts Court. The question is whether we are willing to preserve the constitutional system of checks and balances bequeathed by our Founders and liberal democracy itself. Our system, including its many counter-majoritarian features, upholds the basic notion that winning an election does not mean capturing every institution or subjugating our fellow citizens who have lost an election. Defending that system requires that we agree on a fundamental proposition: some steps should not be taken, some powers not claimed, even if we think we do so for the right reasons. Court packing is such a step; it would not merely remake the Court, but transform our constitutional order itself. It would leave the judiciary less independent, the law less stable, and all of us more vulnerable to the authoritarian threats, on left and right, that have always menaced law and liberty.
© The UnPopulist, 2026
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I think Mr. Nunziata's reasonable argument suffers from a significant omission. Democrats' dissatisfaction with the current Court certainly stems in part from their view of its rulings, but it more basically derives from the procedural manner in which the Court members were appointed. Prior to 2016, the Senate had invariably exercised its role to advise and consent on Presidential nominations, and this had been true regardless of party alignment. Not all Presidential nominations were approved by the Senate: LBJ had his joint nominations of Fortas and Thornberry defeated, Nixon had Haynsworth and Carswell defeated, Reagan's nomination of Bork was rejected. But these were substantive votes based on specific nominees. Republicans tended to oppose liberal nominees and Democrats tended to oppose conservative ones, but rejected nominations were rare: even so controversial a nominee as Thomas was approved by a dominantly Democratic Senate.
When Barack Obama nominated Merrick Garland in early 2016 this tradition was altered. The GOP refused even to grant Garland interviews and no hearings or votes were held on the grounds that it was inappropriate for a president to nominate a candidate "only" ten months before the end of his term. No precedent for such a standard existed. The goal was transparently to use a Republican majority not to block a specific nominee, but to refuse to allow a Constitutionally mandated process to proceed in the hope of partisan advantage, with a possible Republican successor to Obama inheriting the right to nominate. This act established a new precedent in which SCOTUS appointments were explicitly partisan. This was the first time in almost 80 years that the Court appointment process was manipulated for partisan advantage, and in the prior 1937 case FDR's attempt to pack the Court was scuttled by his own party despite its supermajority.
Then in 2020, only six weeks before a presidential election, McConnell's Senate improvised a new rule to allow the appointment of Amy Coney Barrett: it was only inappropriate for the President to nominate and the Senate to confirm a SCOTUS appointee when the Presidency and Senate were controlled by different parties. A more cynical manipulation of the Court appointment procedure could hardly be imagined.
The Senate's charge to consider and Court nominees is explicit in the Constitution, but the size of the Court is not. The force of extra-Constitutional tradition was such that the Democrats exercised restraint in the case of FDR's 1937 packing attempt, but the Republicans did not allow them for inventing a transparently irrelevant excuse for evading the Senate's Constitutional duty in 2016 and then reversing themselves when partisan advantage fell the other way just four years later.
Given this history, I do not think a possible Democratic decision to add justices beyond the current nine seats in 2029, if they are able to, should be seen as anything but redressing a partisan distortion of a Constitutionally mandated process by the GOP, particularly if the expansion is framed as a temporary measure designed to incentivize both parties to reach a more permanent solution that will better constrain partisanship.
I don't know that it would actually be a good idea for a possible Democratic president to add seats to the Court in 2029. I think it would be wise to wait until closer to the date to see how the present Court's rulings play out in the interim. (After the 1937 court-packing scheme failed, the Court's behavior nevertheless changed significantly because it had been sensitized to a changed political environment.) But I think Mr. Nunziata's omission of this history is a very significant weakness in his argument.
Great analysis! There is a case for a well reasoned reform of the Supreme Court that may end up enlarging the Court and changing the appointment and advise and consent practices with which we have become accustomed.
BUT to do so now in this viciously hyper-partisan environment would be a disaster. Any changes must be deeply and profoundly bipartisan.
Many proposals for or against expanding the court flow from frustrations with the reality that the Constitution can and is read in different ways, over time and each of those different readings is legitimate. The results can be weak or strong. The "Living Document" versus "Originalist" debate is largely a false dichotomy.
The answer to the frustration of court decisions is not to change the court which seems to be the driving obsession of both Republicans and Democrats since the Warren Court. The focus should be upon overcoming the Constitution through the Amendment process.
For example if there was an Amendment defining and protecting the explicit right to privacy then Roe vs Wade and other controversial decisions would have stood up on a sounder foundation that just precedent which we all know can and does alter over time.
We all hate Citizens United but the answer is an explicit amendment that grants Congress and the states power to regulate campaign finances in spite of free speech concerns.
The problem is that Amendments are hard to do and politicians, wanting to avoid the heavy lifting of the amendment process, keep holding onto the bad idea that the courts are the easier softer way to get what they want. But it really isn't.