The Unfortunate Necessity of Court Packing to Stop America’s Authoritarian Drift
A proposal to add justices without opening a cycle of mutually assured destruction
Dear Readers:
Desperate times require desperate measures. We are living in desperate times. Donald Trump, as Andy Craig and I have written, has damaged every element of our constitutional operating system and amassed vast and unaccountable powers in the hands of the executive. Undoing that damage and putting the executive back in its proper place will require nothing short of a second Reconstruction. That is why The UnPopulist has launched the Reconstruction Agenda, a project dedicated to developing a concrete and comprehensive proposal to stop America’s drift toward authoritarianism by ensuring that the president is once again bound by law and answerable for breaking it, as the Founders envisioned.
Such a project faces many obstacles. And a major one is the current Supreme Court, which has itself done so much to hand the president unchecked powers. Overcoming that obstacle might require desperate measures, once anathema, even to us, such as court packing. This is the measure that our senior legal editor, Andy Craig, thoughtfully considers in this essay. He offers a bold proposal that sees court packing as an unfortunate—and temporary—remedy that must be anchored in broader reforms of the court, all of them entrenched through a constitutional amendment, to avoid a cycle of tit-for-tat mutually assured destruction.
It is an innovative plan that we hope generates debate and discussion. Indeed, over the course of the next few months, we will invite critical responses from legal experts. Stay tuned for more. Meanwhile, we are very curious about what you think so do post your comments and thoughts.
Shikha Dalmia
Editor-in-Chief
A few years ago, court packing was a fringe idea with no realistic prospects. President Biden’s commission on Supreme Court reform pointedly declined to endorse adding seats, and no realistic vote count could reach 51 in the Senate—not only for expansion itself, but for nuking the legislative filibuster to bring it to a vote at all.
That is no longer the case. Hakeem Jeffries, likely the next speaker of the House, calls the Court “a disgrace” and says everything is on the table. After the Court gutted the Voting Rights Act in Louisiana v. Callais, he went further, denouncing the majority as illegitimate outright: “It’s the Trump Court.” Jamie Raskin, the likely next chairman of the House Judiciary Committee, openly advocates four new justices. In the Senate, Adam Schiff—nobody’s idea of a bomb-throwing radical—is among those carrying expansion legislation. And Kamala Harris, the party’s most recent nominee, urged Democrats in May to put expansion on the menu of reforms.
What was unthinkable in 2021 is now, plainly, the emerging mainstream Democratic position.
Opponents of court packing need to grapple with why this has happened, and with the Court’s own role in provoking it. With some version of expansion very likely the next time Democrats control Congress and the White House, angry denial has stopped being a strategy. But the increasingly common framing on the left fares no better: that expansion is an affirmative good, not just an unfortunate and temporary necessity.
To be clear, court packing is a real harm. It destabilizes, it invites retaliation, it treats the Court as a prize to be captured rather than an institution to be repaired. Every standard complaint against it is correct.
But sometimes a smaller harm is necessary to avoid a far bigger one. In Trump v. United States, the presidential immunity ruling, and Callais, the Voting Rights Act decision, along with the chaotic use of its emergency powers and ideological inflexibility, the Roberts Court has reached a point where half the country reasonably does not accept its moral legitimacy. Moreover, the project of constitutional repair after Trump will be well-nigh impossible so long as this Court wields the veto power.
The case is not that court packing is good. But we need to start working with the reality that the Court has brought it on itself, and what a way out looks like.
‘Never’ Is Not an Answer
Start with the strongest version of the case against court packing. Judicial independence is a rare and fragile achievement. As Alexander Hamilton noted, the judiciary is the “least dangerous branch” that commands neither sword nor purse, and its authority rests on the public’s willingness to treat its judgments as law. The moment one party adds seats to reverse outcomes it dislikes, the other will do the same at its first opportunity. Thirteen becomes 17 becomes 21. This is part of why FDR’s 1937 plan failed even with the largest congressional majorities any president has enjoyed. Members of his own party killed it, and history vindicated their judgment. The nine-justice norm, undisturbed since 1869, is itself the guardrail.
All of that is correct. But it is an accounting of costs, and costs can be outweighed by even greater costs.
Suppose the Supreme Court ruled tomorrow that Catholicism is the established religion of the United States—a decree lawless on its face. The prescribed remedy, impeachment, requires 67 senators. Thirty-four senators of the justices’ party refuse to convict. Is the answer that the country must simply submit?
Nobody actually believes that. Five (or even six) justices plus 34 senators do not add up to absolute, unaccountable power, because the American system is premised—everywhere, in every branch—on nobody holding that kind of power. That is the thing the whole design exists to prevent.
Once you concede the hypothetical, the untenably absolute and categorical opposition is gone. The question is no longer whether changing the Court’s composition can ever be justified, but where the line sits and whether this Court has crossed it.
Nor is the remedy extra-constitutional. The Constitution deliberately leaves the Court’s size to Congress, which has changed it seven times in American history. Congress also holds the powers of impeachment, jurisdiction, and the purse. The least dangerous branch is least dangerous because the political branches retain these checks. A judiciary structurally immune from any response by the elected branches would not be an independent court.
Nor is this the only—or even the most extreme—tool that the Constitution gives Congress to tame or check the Court. In principle, Congress could strip the justices down to little more than interstate water fights on the Colorado River given that Article III gives it the authority to take whole categories of cases out of its jurisdiction by simply passing a law. This practice, known as jurisdiction stripping, is something Congress has done on smaller scales on occasion. It is not the better route. But its existence makes the same point: the Founders did not design a system in which Congress kneels helpless before a rogue Court.
Conceding a theoretical exception licenses nothing in particular, of course. But the exception is not merely theoretical. Congress has used it.
The last time Congress actually changed the Court’s size was 1866, when it shrank the Court from 10 seats to seven, by attrition, for one reason: to deny Andrew Johnson—the accidental president working to strangle Reconstruction in its crib—any appointments. Having just won a civil war at the cost of three-quarters of a million lives, Congress was not prepared to let that settlement be unwound by judges chosen by a president openly hostile to it. Once Johnson was gone, the Judiciary Act of 1869 restored the number to nine, where it has remained ever since.
That precedent is not a license for adjusting the Court whenever its rulings displease a congressional majority or a president. In 1937, FDR tried to pack the Court because it ruled against some (not all) elements of his New Deal agenda. But that effort rightly failed because the Court was not constitutionally out of line, and the claims to the contrary were weak.
The 1866 precedent was for a narrower—and graver—goal: remedying a court that was threatening the constitutional settlement itself. Congress acted. The republic survived. The Court survived. The norm of nine emerged from that episode, not in spite of it.
The question then is this moment more like 1937 or 1866? That cannot be answered in the abstract. It turns on what this Court has actually done, and the unavoidable shadow of the man in the White House.
How Bad Is This Court, Really?
Here is the generous assessment: This Court is conservative, not captured. It rejected the attempts to overturn the 2020 election and has sometimes ruled against Trump in various cases. In the second term it has handed the administration real defeats: it struck down the emergency-powers tariff regime, blocked the National Guard from being turned against blue states, and stayed deportations under the Alien Enemies Act. Its commitments—originalism, textualism, skepticism of executive agencies—are positions a serious lawyer can hold in good faith. Critics who call the Court lawless are mostly people who lost cases, or simply want a left-wing activist Court.
That picture is not a strawman. As recently as 2023, I would have opposed court packing outright (like Ilya Somin at The UnPopulist). Not because the Court deserved so generous an assessment, which even then it did not, but because the bar for so drastic a remedy had not yet been reached.
What changed is not the principle. It is the Court. A 6-3 majority, especially after it had settled in for a few years, has proven far less constrained than the 5-4 Court it replaced. With no swing vote left to discipline its work, the work has grown shoddier and more reckless. And the majority’s role in enabling Trump’s return to power, and the abuses since his second term began, have caused the situation to deteriorate precipitously. That they did so out of misguided ideological reasons, or cynical partisan motives, or some mix of the two, rather than necessarily personally liking Trump, does not make it any better. The radicalization in this story is not the critics’. It is the Court’s.
The test is not the ordinary run of contested decisions. It is what this Court does when its side’s power is directly at stake, measured against the Court’s own professed methodology. On that test, the record shows two things: a Court constructing an unaccountable executive, and a Court administering election law that benefits one party.
Begin with Trump v. United States. The Court held that a president enjoys absolute immunity from criminal prosecution for his or her core constitutional functions and presumptive immunity for all other official acts. Less noticed but arguably worse, it held that even unofficial crimes cannot be proven with evidence of official conduct, which would strike at the most basic examples like outright bribery, or Nixon’s actions in the Watergate scandal. Measure it by the originalism this majority professes. You’ll find no supporting text—it’s an extrapolation from the supposed umbras and penumbras of Article II. Presidential immunity appears nowhere in the Constitution, and the Impeachment Judgment Clause expressly contemplates that a removed officer “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” There is no founding-era history. The Framers, fresh from a war against a king, never suggested the president stood beyond the criminal law, that the king can do no wrong. Ford’s pardon of Nixon makes sense only on the premise that he could have been prosecuted for abusing his powers.
This is not a critique solely from the left. J. Michael Luttig, the retired conservative appellate judge, called the decision “abominable.” Stephen Trott, a Reagan appointee on the Ninth Circuit, wrote that it leaves us “a kingdom within our republic.” The problem is not that the Court reached a conservative result. It is that it reached a result conservative methodology forbids—an atextual, ahistorical, judge-made immunity, conjured in the one case where the leader of the party that appointed the majority needed it.
And the immunity ruling is half of the construction, not the whole of it. In Trump v. Slaughter, argued in December and awaiting decision, the administration has asked the Court to overrule Humphrey’s Executor. That 90-year-old precedent lets Congress shield independent agencies—the FTC, the NLRB, the FEC, the SEC, and their siblings—that it itself has created from at-will presidential removal. The Court’s own stay orders have telegraphed where this is going: it has already let the firings stand while it deliberates. It paused only to invent an exception for the Federal Reserve—an exception that exists nowhere in the law, only in the majority’s awareness of what markets would do without it. Take the two rulings together and the design becomes visible. A president who cannot be prosecuted for crimes committed through his office, atop an executive branch in which no officer may lawfully tell him no: immunity after the fact, obedience before it. That is not a judicial philosophy. It is the constitutional architecture of autocracy.
Then Callais. In 2023, in Allen v. Milligan, the Court reaffirmed the longstanding framework of Section 2 of the Voting Rights Act. Two years later it took the case brought about by white plaintiffs suing to strike down Louisiana’s congressional map, heard argument, ordered it reargued on a broader constitutional question, and in April 2026 issued a 6-3 decision holding that the use of race to remedy dilution of minority votes is constitutionally suspect. It dismantled the heart of the Voting Rights Act six months before a midterm, to the obvious and sizable benefit of the party that appointed the Court’s majority. Ask the mirror-image question: if a Democratic-appointed majority had done the same on the eve of a midterm, shoveling more seats into the blue column in elections where primary voting was already underway, would any conservative hesitate to name what had happened?
The election cases on the emergency docket are damning because they make the pattern so visible—and quantifiable. The rule against judicial changes to election procedures should not be imposed close to an election, called the Purcell principle, has been applied or abandoned in both directions and on opposite facts by this Court to ensure that the Republican-controlled state wins. In 2022, it invoked Purcell to force elections under maps lower courts had found unlawful. By Steve Vladeck’s tally, those interventions netted Republicans as many as five House seats—the exact margin of the 118th Congress majority. In May 2026, it lifted the order protecting Alabama’s two majority-Black districts one week before primary voting began—exactly the disruption the doctrine supposedly forbids. The National Redistricting Foundation counts more than 2.49 million Americans made to vote in districts that courts had already found likely illegal. A doctrine sold as judicial modesty has functioned as a thumb on the scale. Republicans do not win literally every election case before this Court, granted. But they come far closer to it than any genuinely nonpartisan court would plausibly produce.
Yes, the Court refused to overturn the 2020 election, and yes, the second-term defeats are real. That is a floor, not a defense, and the shape of the record is the point.
Hakeem Jeffries’s charge that this is a “Trump Court” is, in fairness, not quite right. The justices are sometimes at odds with Trump, and the tariffs case was a major defeat for him. It was also, not coincidentally, the issue where Trump cuts most sharply against longstanding Republican policy preferences. But if they are not a Trump court, it is much harder to deny they are a Republican court—and that is still not “independence.” The difference between a Republican court and a Trump court may have some explanatory power. It is not a distinction that should boost anyone’s confidence, and it is not a description of the job being done as it should be done.
The standard warning is that court packing would trigger a judicial legitimacy crisis. That gets the tense wrong: the crisis is the present condition. The Court’s public standing has fallen 22 points since 2020, to near a three-decade low. The decline tracks the Court’s own conduct, not the propaganda of its critics. Conservatives, of all people, should understand why: institutions live on habitual reverence, and a court that spends that inheritance has done the radical thing already.
What the Left Gets Wrong
A substantial part of the left, though, treats expansion as an affirmative good—“unrigging” the Court, democratizing it, correcting a stolen majority. This framing should be rejected. The arguments for it are arguments of necessity, valid only in proportion to the disease. The costs are real and permanent, and the honest case has to concede them and proceed anyway.
Worse is the strand for which the real target is judicial review itself. When Harvard’s Ryan Doerfler and Yale’s Samuel Moyn call on progressives to “reclaim America from constitutionalism,” they treat the breaking of the Court not as tragic necessity but as the point. For anyone in the liberal tradition this should be anathema.
Strong judicial review, subjecting laws to a constitutional test, is among the crowning achievements of the American constitutional order, and its record is written in liberties Americans now take for granted. The Warren Court’s civil rights era—Brown, Gideon, Loving—is nothing to sniff at. But the wins neither began nor ended there. It was the wartime Court of 1943, in West Virginia v. Barnette, that held no official may prescribe orthodoxy in politics or religion—while the flags of actual fascism flew abroad. It was the Rehnquist Court in 1989, with Justice Scalia in the majority, that protected flag burning as speech. Courts wielding judicial review built the modern law of free expression, shielded the press, extended marriage to interracial and then to same-sex couples, and stood between the police and the accused. To gleefully ditch the whole premise, from Marbury v. Madison onward, because its current custodians have battered it, is throwing out the baby with the bathwater. That the guardians have betrayed their trust is an argument for replacing the guardians, not abolishing the trust.
The same discipline applies to the exotic structural proposals. Daniel Epps and Ganesh Sitaraman’s “Supreme Court Lottery“—every federal appellate judge becomes a justice, with cases heard by panels of nine drawn at random—should be declined. The purpose of a single apex court is finality—one bench that settles the law nationally and stands behind its own precedents. As Will Baude has shown, even a perfectly balanced judiciary would by chance produce lopsided panels—a 6-3 lineup more often than not. The law would lurch with each draw; the “Supreme Court” would be constantly disagreeing with itself.
The distinction is the heart of the matter. The case for expansion is conservative in the deepest sense: a measure taken reluctantly, bounded in purpose, aimed at restoring an institution rather than capturing or dissolving it.
The Court and the Regime
The damage this court has done is not prospective. Much of it is already done.
Return to the 2024 immunity ruling, which considered whether Trump’s efforts to steal the election by pressuring public officials and then obstructing the transfer of power by fomenting an insurrection enjoyed presidential immunity from prosecution. No one can know whether Trump standing trial for his attempted coup—possibly even being convicted, as he plausibly might have been in time—would have changed the result of the election. The counterfactual is unknowable. But it might have; the election was close. Either way, the Court was effectively weighing in on the side that Jan. 6 was not that big a deal and that Trump effectively could not be held responsible for it. That was not just a legal decision, atrocious as it was on the law. It was a political message, and it is understood as such by the half or more of the American people who are correctly repulsed by it. Their views count, too, if we are reckoning the state of the Court’s perceived legitimacy.
Nor can any of that be waved off as mere perception, irrelevant to the constitutional merits. For a court, perception is operational. Rulings bind because people accept that they should. A Court that has taught half the country to see it as a participant rather than an arbiter has lost something no opinion can write back into existence. Anyone weighing the costs of court packing against the status quo has to put that loss on the scale. The legitimacy that reform supposedly endangers is, in large part, already gone.
All of this is why the Court’s composition cannot be bracketed off from post-Trump Reconstruction. The repair work ahead requires rolling back the executive power this president seized and his predecessors accumulated: the war powers Congress surrendered over decades, the emergency declarations that let a president legislate by proclamation, the money spent without appropriation, the hollowed-out congressional capacity to oversee any of it. This Court might not be hostile to some of this, but it would be on some of those issues. But we need a court that can be relied on not to hobble a serious reform agenda.
Reconstruction also means refusing legal effect to the instruments of lawlessness—the corrupt pardons, the unconstitutional orders—rather than grandfathering them into the legal order. The Court will be less amenable to undoing what itself has done—the immunity ruling, and whatever is left of agency independence after Slaughter. Those are constitutional holdings. There are exactly two ways to be rid of a constitutional holding: the Court overrules it, or the Constitution is amended over it. And it means repairing election law after Callais.
The fear that the Court will gin up any pretext to get its desired result, whether right or wrong, at this stage is understandable. And it casts a pall over this reform and many others. Why do the hard work of passing a much-needed reform when the Court may simply strike it down anyway? Why build anything at all, if the Court is going to play partisan Calvinball with it?
Now ask the operative question: what does the current Court do with that agenda? The honest answer is that it strikes it down. A reconstruction that can be vetoed at will by the old regime’s judicial allies would be stillborn. It is then only a pause before the next, smarter aspirant to tyranny arrives to find every precedent he needs already on the books.
Nine Justices, Eighteen Years: The Only Stable Settlement
The critics of court packing are right on one thing, because their strongest argument is true: expansion invites retaliation. Tit-for-tat is not a risk; it is a certainty—unless the packing is explicitly the bridge to something that ends the game. It would require adding four justices, raising the total to 13 to flip the current court majority, but in the long term there is nothing stopping Republicans adding a couple more to flip it back.
There is a nonpartisan idea that would accomplish locking in the size of the court, forever shutting down court packing. A constitutional amendment fixing the Supreme Court at nine justices serving staggered, non-renewable 18-year terms. One seat turns over every two years, so every presidential term carries exactly two appointments. Vacancies are filled only for the unexpired remainder. This is, almost detail for detail, the proposal Steven Calabresi—co-founder of the Federalist Society—and James Lindgren published two decades ago. Term limits command supermajority support—78% in a Fox News poll, with strong majorities of Democrats, Republicans, and independents alike. The pathologies the reform cures are not necessarily partisan: the strategic retirements, the actuarial deathwatch, the premium on youth over wisdom, every confirmation an apocalypse.
It must be an amendment, not a statute. Partly that is because Article III’s “good Behaviour” clause makes statutory term limits a gamble this Court would resolve. Mostly it is because only constitutional text can entrench the settlement against the next packing. And here is the irony: today there is no constitutional barrier whatsoever to court packing. The nine-justice Court is a statute and a norm, and the norm is already dying. Republicans themselves have already packed state courts for partisan or ideological advantage where they could—Arizona and Georgia in 2016, and again in Utah this January. The most anti-court-packing act available to American politics is to write the number nine into the Constitution.
There is an obvious objection here: if the country is going to amend the Constitution at all, why spend that enormous effort freezing the Court at nine and abolishing lifetime tenure instead of repairing the substance: an amendment stripping the invented immunity, an amendment reforming the pardon power, an amendment restoring the removal protections? Those all belong on the agenda. But you cannot amend your way out of a Court that manufactures dubious constitutional law faster than Article V can repeal it. Presidential immunity took one opinion to create. Repealing it by amendment would take years and 38 states, and the same majority can build three new doctrines behind it in the meantime. Slaughter is the demonstration in hand: the removal protections it is poised to erase are exactly the kind of statutory check on executive power that reformers would enact. Written by Congress, blessed by 90 years of precedent, and gone the moment at least five out of the six Republican justices say so.
Moreover, every reform on the list, statutory or constitutional, will pass through this Court’s hands for interpretation. The amendment that fixes the Court is the keystone, because it is the one amendment that determines who construes all the others.
How could such an amendment ever be ratified? Here expansion finds its proper place: not the end, but the means. It serves two functions.
The first is defensive. Ratification takes years, and the work of Reconstruction can neither wait for it nor survive the current Court’s veto. An expanded Court is the interim guarantee that the work is judged by law rather than by participants protecting a project. That is the 1866 function: securing the settlement in the window when it is most vulnerable.
The second is the stick that makes the carrot real. Why would Republicans ever ratify an amendment that puts any limit on their hold over the Court? Today they enjoy an entrenched six-justice majority that, thanks to the blatantly partisan strategic timing of retirements, is effectively self-perpetuating. No rational party trades that for a fair system unless the lock is being broken anyway. Expansion, and its credible threat, changes the calculation. For Democrats, the amendment ends a ratchet they cannot win. For Republicans, it converts a court they are about to lose outright into one where every president, of either party, gets the same two appointments per term—written into the Constitution.
Could Democrats make this offer, that packing comes with the offer of an amendment? Is pack-and-unpack fanciful? Less than it sounds. The unpack is not a mere promise of forbearance from the party that packed. It is the amendment itself: constitutional text, ratified by Republicans for their own reasons, self-executing as the 18-year terms start to phase in immediately, and attrition carries the bench back down to nine.
The expansion statute itself can plant the flag: a trigger provision repealing the added seats upon ratification of the “nine-and-18” amendment. Legally this is unnecessary; a constitutional amendment overrides a statute of its own force. But the redundancy is the point. A law that writes its own expiration into its text makes the offer explicitly, on the record, from the day it passes: here is the off-ramp, and it stays open even if ratification takes years. The future the trigger exists to disclaim is the one everyone rightly fears, dozens of new justices appointed every time one party controls Congress and the White House.
And the country has run the play before. The Reconstruction Congress changed the Court’s size to protect a constitutional settlement, and nine was restored when the danger passed. The restoration held for a century and a half. The only precedent for a temporary adjustment is one that hardened into the most stable institutional norm in American government.
And if the amendment never comes? Expansion is still warranted on the defensive ground alone—rebuilding a stable post-Trump constitutional settlement cannot survive this Court’s veto either way. But the public commitment, made from day one, is what separates restoration from capture. Without it, a necessary evil becomes an ordinary power grab.
The sequence follows from the math. Expansion is a statute; a bare majority can pass it. The amendment needs two-thirds of both chambers and thirty-eight states, which Democrats will never have on their own. The expansion is what creates an incentive otherwise wholly lacking: a reason for Republicans to accept any limit at all on a hold over the Court they would never otherwise surrender. Court packing as an end in itself is a road to ruin; its critics are right about that. Court packing as the bridge to a constitutional settlement is the necessary evil, with equal weight on both words—deployed once, for the reasons the Reconstruction Congress deployed it, with one difference: this time the restoration of nine gets written into the Constitution, where repetition is finally impossible.
It wouldn’t be the first or even the most radical time Congress played constitutional hardball to get an amendment passed: the original Reconstruction Amendments—the 13th, 14th, and 15th—were ratified by directly coercing Southern states that their representation in Congress would not be restored until they ratified. A much more extreme tactic, to put it mildly.
The emergency is real, and this Court did much to create it. “Never” is not an answer to that condition, and treating expansion as a prize is not one either. The task is to get the country through the crisis and onto ground where no Court can do this again and no Congress will need to do this again, or even have the option. The amendment—nine justices, 18-year terms—is that stable ground. Court packing, used now but with the open offer of surrendering it on ratification, is a plausible way to reach it.
© The UnPopulist, 2026
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For crying out loud, stop calling it “court packing.” Packing the court is what McConnell, the Federalist Society, and the Heritage Foundation have already done. Correcting that horrible injustice, increasing the size of the court to acknowledge the growth of the nation and the number of appellate circuits, and staggering term limits to ensure each POTUS a fair share of nominations, is not “packing.” It is the opposite.
You’re missing the obviously superior fix.
Confirm the entire DC circuit to the SCOTUS bench.
Then empanel every case randomly from that large pool of justices.
It defuses the retaliation MUCH better than staggered terms, and does NOT require an amendment. The law can even strip SCOTUS of the jurisdiction to strike it down.