Court Packing Is a Dangerous Gambit Best Avoided
The Roberts Court is not Trump's lackey—but its worst rulings can be fixed by less radical measures
Dear Readers:
A few weeks ago, our senior legal editor Andy Craig made the case for a reluctant, limited form of court packing—tied to a constitutional amendment that would lock the Supreme Court at nine justices and 18-year terms—as part of our Reconstruction Agenda project. We said then that we’d invite critical responses—and we’ve been hard at work making good on that.
Ilya Somin, Professor of Law at George Mason University, the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute, and the author of Free to Move: Foot Voting, Migration, and Political Freedom, has long argued against court packing on classical liberal grounds, and takes on Andy’s proposal directly. He agrees with Andy on the stakes: that the Roberts Court has issued some genuinely bad rulings, and that unrestrained court packing risks a retaliatory spiral that could gut judicial review altogether. But he disagrees on the remedy.
Facilitating this kind of meanginful, intra-liberal disagreement is something we have always done at The UnPopulist. Reasonable liberals can land in different places on a question like this—and Andy and Ilya are proof of that.
Shikha Dalmia
Editor-in-Chief
Court-packing has once again become a major focus of political contention, with many on the political left advocating it in response to what they believe are badly flawed and illegitimate decisions by the Supreme Court. In a recent article for The UnPopulist, Andy Craig provides reluctant support for court-packing, but with a twist he argues will minimize the danger: combining court-packing with a constitutional amendment imposing term limits on Supreme Court justices that would—if enacted—reverse the packing. The term-limit system would give every president two appointments per term, thereby potentially producing more ideological balance on the bench.
Craig’s proposal is clever and a cut above more conventional defenses of court-packing. But I remain unpersuaded. His argument falls short in multiple ways. He overrates the negative aspects of the current Supreme Court majority and underrates their positive contributions, including on the very issue of combating incipient authoritarianism, the main focus of his concerns. He also overestimates the supposed inevitability of future court-packing and the feasibility of his compromise plan. Finally, there are good alternative fixes for many of the problems that (rightly) concern Craig.
Before going into detail on our differences, it’s worth noting some key points of agreement. Craig and I both agree that strong judicial review is a valuable institution, and that court-packing (at least if not combined with his term-limits proposal) is likely to lead to a spiraling retaliation that will destroy that institution. Once one party “packs” the court, the other will almost certainly retaliate in kind. The end result is likely to be a judiciary unwilling to meaningfully constrain the party in power. In an earlier Lawfare article criticizing court-packing, I explain how this spiral is likely to destroy judicial review at the lower court level, too.
We also agree that the conservative majority on the Supreme Court has made some badly flawed decisions. But we differ somewhat on how bad they are and whether court-packing could “fix” them.
Rights and Wrongs of the Roberts Court
Craig’s advocacy of court-packing arises from his dissatisfaction with several major Roberts Court decisions, which he believes are both legally wrong and help Donald Trump’s bid for authoritarianism. In some cases, I agree these are bad decisions. But Craig does not give sufficient weight to the court’s many good decisions, especially those that serve as useful constraints on executive power and thereby also curb incipient authoritarianism.
Over the last 18 months, the Supreme Court has played a key role in thwarting several major Trump power grabs. The most recent example is the birthright citizenship case, which prevented him from stripping citizen status from hundreds of thousands of children of undocumented migrants and temporary visa holders, thereby subjecting them to potential deportation.
In Learning Resources v. Trump (which I helped litigate), the court struck down Trump’s attempt to use the International Emergency Economic Powers Act (IEEPA) to impose the highest tariff schedule since the Hoover-era Smoot-Hawley tariffs that notoriously exacerbated the Great Depression. Trump’s tariffs would have imposed some $1.7 trillion of new taxes on Americans. The court’s reasoning was not limited to the specifics of IEEPA. All six justices in the majority made clear that they rejected the notion that the president could have a virtually unlimited power to impose tariffs. Thus, the precedent is likely to help block his efforts to twist other statutes into authorization for unconstrained presidential tariff authority, as in the case of his recently imposed Section 301 tariffs (which are now being challenged in court).
In lesser-known cases, the court blocked Trump’s effort to use the National Guard against blue states (thereby causing him to abandon the effort) and twice used brief “shadow docket” decisions to block deportations under the Alien Enemies Act of 1798 and signal that courts could review Trump’s invocation of that law (though without resolving the issue of whether he was right to do so).
Liberal Supreme Court Justice Elena Kagan is no fan of much of the conservative majority’s jurisprudence. But, in a recent speech, she rejected the charge that they just “rubber stamp what the current administration does.” The truth is “quite the opposite,” she said. “I think that that is a bad rap.” To back up her point, she cited several recent cases, including the tariff case, the National Guard case, and more. She emphasized that “[t]ariffs is probably the key policy issue for this president … something he campaigned on … he cared an enormous amount about. … I don’t think that there are all that many decisions in the recent times, where a court strikes down such an important policy to a sitting president.” She’s not wrong.
The court’s earlier rulings in “anti-commandeering” and Spending Clause cases have played an important role in protecting “sanctuary cities” against Trump’s efforts to force them to aid in his cruel mass deportation policies. In both his first and second terms, these decisions—mostly written and supported by conservative justices—have been repeatedly cited by lower-court judges as crucial precedents curbing Trump’s power to directly coerce state and local governments and to pull federal grants from them. Lack of state and local support significantly constrains deportation efforts.
The Roberts Court is also probably the most speech-protective Supreme Court majority in all of American history. Most notably, it has issued a series of decisions prioritizing freedom of political speech over campaign finance restrictions (although, I understand, many of my progressive friends are less enthused by it), governments’ ability to indirectly pressure speakers, and impose restrictions on social media. When it comes to the latter issue, the court’s ruling came in a case involving two red states’ efforts to restrict social media moderation.
If we are worried about incipient authoritarianism, it is particularly important to prevent the state from being able to use speech restrictions to suppress opposition. I believe the Roberts Court’s pro-speech decisions are justified even aside from this danger. But in an environment where a descent into authoritarianism is a real threat, we may need to bar even some speech restrictions that might be justified in other situations, including, in this case, campaign finance regulations that many on the left believe the government should be able to impose. If you let Trump and his supporters in Congress wield broad authority over campaign finance, they are likely to use it to target political opponents.
Finally, the court’s growing use of the “major questions” and nondelegation doctrines—both of which make it difficult for the president to claim sweeping delegations of authority—are also a valuable barrier to potential executive authoritarianism. The “major questions” doctrine requires Congress to “speak clearly” when authorizing the executive to make “decisions of vast economic and political significance.” It makes it difficult for the president to use vague statutes to make massive power grabs, as Trump tried to do with tariffs. The nondelegation doctrine imposes constitutional limits on how much power Congress can delegate to the president, even when it is clear in doing so. Both can be used to counter both left- and right-wing power grabs. We saw this in the tariff case, where three conservative justices relied extensively on major questions in their ruling against Trump.
Craig acknowledges these second-term defeats are real yet insists that they are just “a floor.” But protecting people from massive power grabs that gravely endangered the liberty and well-being of millions is no small matter. The same goes for blocking executive use of the military to suppress domestic opposition. And, in each of these cases, the Trump administration had at least minimally plausible arguments for their positions, sometimes backed by prominent conservative legal scholars and commentators. A court inclined to give Trump and the GOP whatever they want could easily have gone the other way on some or all of them. Even if the court could and should have done more to constrain Trump, these rulings are crucial safeguards for liberty and democracy.
Still, it is true that the conservative majority has issued some very bad rulings. I agree with Craig that Trump v. United States—the 2024 presidential immunity ruling—is one of them. But that decision does not give the president blanket immunity from all criminal prosecution for actions taken while in office or even categorical immunity for all “official acts.” It’s a bad decision but not one that totally eliminates criminal prosecution as a check on presidential abuses of power.
The same is true of Trump v. Slaughter, the ruling giving the president the power to remove administrative agency heads previously protected from removal by statute, except “for cause.” I myself have serious reservations about “unitary executive” theory, especially in the modern context of greatly increased federal power. But there is a highly plausible, even if debatable, textualist and originalist case for the result in Slaughter. Moreover, it is not clear how broadly Slaughter will apply, given the court’s simultaneous decision in Trump v. Cook, holding that the president does not have the power to dismiss members of the Federal Reserve Board without cause.
The reasoning used to protect the Fed against presidential removal power is difficult to reconcile with Slaughter, but might well also protect at least some other agencies. In my Lawfare article, I make similar points about Louisiana v. Callais (another case emphasized by Craig). It, too, has its flaws, but is not as bad as critics claim. Its ruling against deliberate use of racial discrimination to create majority-minority districts is generally sound, though it is also flawed insofar as it makes it too easy for Republican states to engage in their own racial gerrymandering.
In my view, the Roberts Court has made several decisions that are worse than any of the above. Most notable are Trump v. Hawaii, the awful 2018 anti-Muslim “travel ban” case, and the similar recent decision in Mullin v. Doe, the Haitian TPS case. In both of these cases, the court’s conservative justices turned a blind eye to blatantly unconstitutional discrimination in the immigration context (one case based on religion, in the other on race). This is part of the court’s broader pattern of indefensible double standards when it comes to immigration restrictions.
But these cases, and others like them, are situations where the court should have blocked a government action but chose not to. Destroying judicial review through court-packing would make that situation worse, not better. It would eliminate all or most situations where courts constrain ruling-party abuses of power. And it would make such constraint impossible in the future, as well. Currently, a future court might overrule or limit cases like Trump v. Hawaii. But there is no such hope if we destroy judicial review.
A packed court would not only refrain from constraining executive abuses itself—but, more crucially, would also prevent lower courts from doing so. As I have previously noted, the Roberts Court’s reversal of rulings against Trump in a few high-profile “shadow docket” rulings has obscured a much larger constrained Trump without any interference.
I’m focusing on legal issues related to Trump’s power-grabs and abuses. Obviously, the Roberts Court has also issued important decisions on other issues. It is not possible to cover all of them here. In my view, the good on these other fronts outweighs the bad, though the latter certainly isn’t absent. Others will weight things differently. But, even if you think the court’s record on these other issues is bad, it is essential to ask whether it justifies destroying judicial review. That question is especially relevant if you think the court’s errors are mainly ones where it gave the political branches of government too much leeway (as with its reversal of Roe v. Wade).
Political Dynamics and Craig’s Proposed Compromise
Craig hopes that the dangers of court-packing can be mitigated by his compromise proposal, under which court-packing would be combined with a provision reversing it if Congress and the states enact a constitutional amendment imposing Supreme Court term limits. The threat of continued Democratic court-packing would, he argues, incentivize Republicans to support the term-limits amendment.
I support Supreme Court term limits, and would be happy to see such an amendment enacted. But Craig’s compromise plan is unlikely to work. Should Democrats enact a court-packing plan, it seems unlikely they would then just give away the advantages thereby achieved. In the long run, those gains are likely to be largely wiped out by Republican retaliation. But politicians often have short-term orientation and discount long-term dangers. For their part, Republicans might reject the plan, especially if—as is likely—it is strongly opposed by the party’s base.
It is important to remember that a constitutional amendment requires massive supermajorities—two-thirds of both houses of Congress and ratification by three-quarters of state legislatures. Even a modest degree of opposition by either the left or the right could easily block enactment.
Perhaps Craig’s plan would still be the best alternative if the only other option is conventional court-packing. Craig suggests as much in parts of his article. But court-packing is not in fact inevitable. To make it happen, either the Democrats would need to have very large congressional majorities, or they would need near-total unity among themselves on the issue, assuming—as is likely—they have only modest-size majorities. Neither of these is a given.
Polls show that court-packing is far from popular. Recent surveys indicate either an even split on the subject or substantial plurality opposition (43-33% in a recent YouGov poll). Moreover, these survey questions all ask about “expansion” of the number of justices without giving any reason why. The policy might therefore seem to some respondents like a politically neutral “good government” measure. Political science experiments indicate that introducing the notion that expansion is intended to change the partisan ideological balance on the court greatly reduces support. Any real-world attempt at court-packing will almost certainly feature widespread ideological appeals of this type. The fear of destroying judicial independence is what killed Franklin D. Roosevelt’s 1937 court-packing plan, even at a time when Democrats had massive congressional majorities and FDR himself was far more popular than any president is likely to be under current conditions.
Maybe things will be different when and if Democrats return to power after the 2028 elections. But, at least for now, we should not give up hope of stopping court-packing by opposing it.
That hope is buoyed by the reality that there are better ways to address many of the flaws of recent Supreme Court decisions. In my Lawfare article, I explain how Callais’s key shortcomings can be offset by legislation banning gerrymandering. Unjust and discriminatory immigration policies can be mitigated by making legal migration easier and abolishing ICE (perhaps by reducing opposition by adopting my proposal to give its funds to real cops). A Democratic Congress with a large enough majority to enact court-packing could easily adopt these other measures instead. Politically, all of these would be far more feasible—with far less danger of going awry—than Craig’s proposal requiring constitutional amendment.
In sum, court-packing is a cure worse than the disease. And there are lots of superior alternatives.
© The UnPopulist, 2026
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Missing from this discussion is the fact that Trump v Barbara was actually a 5-4 decision on constitutional grounds, and that there's no way this case should've even been granted review. There was no lower court split, and if birthright citizenship is not "settled law" I don't know what should be.
Yeah, the IEEPA ruling is nice and all, but if my choice is between the legitimacy of my childrens' citizenship and a little more money in my pocket, it's not really hard to see which I'm going to choose.
I chose to put scary quotes around "settled law" because that's the high school debate team trick ultraconservative justice candidates have been using to get through Senate confirmation while holding positions that are way out of step with the mainstream. Complicit senators, like say, Susan Collins have been pretending to fall for the trick in order to feign consternation during their re-election campaigns.
The fact is, the court has already been packed: Packed by Mitch McConnell abusing the undemocratic powers of the majority leader of the second most undemocratic organ of the government to push the most undemocratic organ well to the right of most of the electorate's preferences.
The entirely natural and predictable outcome is that the Court is losing legitimacy at an alarming rate. Andy Craig proposes a reasonably moderate way to remedy this erosion.