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These two arguments make Americans less opposed to court packing

Putting more justices on the Supreme Court might not backfire as spectacularly as many expect.

- March 26, 2019

Should Democrats try to add more justices to the Supreme Court?

Some 2020 presidential candidates are discussing the idea — responding to the party faithful’s anger at Republican tactics that have shifted the federal judiciary to the right, including the U.S. Senate’s refusal to hold hearings on President Barack Obama’s 2016 nominee, Merrick Garland.

Beto O’Rourke, in his first day as a presidential candidate, said changing the composition of the court was “an idea we should explore.” Kamala D. Harris, Elizabeth Warren and Kirsten Gillibrand have all expressed at least some interest. Long shot Pete Buttigieg embraced the idea, suggesting six more justices.

While many observers have argued that stacking federal courts for political reasons ends up hurting those who try it, our research suggests otherwise.

Citizens often reject attempts to reshape their high courts

Both in the United States and elsewhere, the public often resists efforts to reshape or stack the courts for political motives. Franklin D. Roosevelt’s infamous court-packing plan failed nearly a century ago. Just three months ago, after intense public and international opposition, Poland’s government reversed its controversial plan to purge members of its high court.

Political scientists have come to a consensus: Given widespread public support for the judiciary, incumbents tend to leave the courts alone, fearing they’ll be punished in the next election.

But would they be?

To be sure, Americans strongly support the Supreme Court and the federal court system. But many are more tolerant of proposals to change the courts’ composition than the conventional wisdom suggests. A sizable minority say they might even reward incumbents at the ballot box for change, particularly when they are proposed by fellow partisans and/or justified in apolitical terms.

How we did our research

Last fall, we surveyed a nationally representative sample of 1,000 Americans as part of the Florida State University module of the Cooperative Congressional Election Study. Embedded in the survey was an experiment about a hypothetical court-packing attempt. We told participants that an incumbent senator from a nearby state “recently introduced a bill in the U.S. Senate that would expand the size of the federal judiciary, adding 64 new federal circuit court (appellate) judges (a 37 percent increase), and 189 new district court (trial) judges (a nearly 30 percent increase).” To make our experiment more realistic, we based the proposal’s details on an actual court-packing proposal that a Federalist Society co-founder made last summer.

We randomly changed two aspects of the proposal: the party of the senator who proposed the bill and the proposal’s rationale. Some respondents read a scenario in which “legal experts” called the proposal benignly bureaucratic and said it would help the courts manage a growing caseload. For other respondents, the “legal experts” said the bill was an attempt to stake the judiciary with like-minded judges.

After they’d read about the proposal, we asked people both if they would vote for the senator in an upcoming election and how they felt about the proposal.

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Who is doing the packing, and why is the court being packed?

Overall, respondents were lukewarm on increasing the size of the federal courts. Only 23 percent said they supported the hypothetical court-packing proposal.

However, when court packing was proposed by a member of their own party, support nearly doubled to 40 percent. Similarly, respondents were 36 percent more likely to report wanting to reelect a senator who proposed a court-packing bill and was a member of their own party than a senator from the other party with a similar proposal.

Respondents were also sensitive to the proposal’s rationale: 36 percent of our respondents said they would vote for an incumbent who introduced a court-packing bill to help the judiciary manage an increasing caseload. When the bill’s purpose was to stack the judiciary, only 17 percent of respondents said they would reelect the senator. Similarly, 33 percent of respondents approved of the bureaucratic version of the proposal while only 14 percent approved of the politicized version.

This finding supports existing research suggesting that introducing proposals to enhance the judiciary’s efficiency would be more effective, whatever the actual motives.

Which is more important, shared partisanship or the stated motivation? Our data suggest it’s the former. Support for proposals and incumbents were always higher when the court-packing proposal was advanced by a co-partisan, regardless of whether the proposal was described in political or bureaucratic terms.

Stated differently, much of the public appears willing to accept fundamental changes to judicial institutions if these changes are advanced by members of their own party.

These proposals might be electorally useful

Political scientists have long assumed that widespread public support for the judiciary acts as a shield, deterring incumbents who might otherwise seek to undermine the judiciary. Our research documents a limit to this logic: Even for one of the most esteemed national political institutions worldwide, a sizable minority of the public would reward an incumbent for seeking to change that institution, especially if the proposal was advanced by a co-partisan and framed in a politically neutral way.

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Our results, of course, come with some caveats. Americans might think differently about an attempt to pack the Supreme Court than they do about the lower courts. Also, it remains to be seen how these proposals would be viewed under real-world media scrutiny, with partisan debate about the reasoning behind the proposal. And of course, given the political realities of congressional procedure and our respondents’ lukewarm reception, such proposals seem unlikely to become law. But they may serve another important purpose.

Proposing changes to the federal judiciary to rebalance its political tilt might mobilize a party’s supporters in the presidential race. It might signal to voters a willingness to go to great lengths to advance a partisan agenda, restructuring institutions for their own political ends. In a crowded field of Democratic presidential hopefuls, that may be important.

Amanda Driscoll is an assistant professor of political science at Florida State University, whose research has appeared in the American Journal of Political Science, the Journal of Law and Courts, Legislative Studies Quarterly, among others.

Michael J. Nelson is Jeffrey L. Hyde and Sharon D. Hyde and Political Science Board of Visitors Early Career Professor in political science, associate professor in the department of political science at Pennsylvania State University, affiliate faculty at Penn State Law, and author of “Black and Blue: How African Americans Judge the U.S. Legal System” (Oxford University Press, 2018).