Court-Packing Is For Wusses
How a REAL man legally seizes control of the federal judiciary
Tongue status: moderately interactive with buccal tissue
As you know, we are having a “national conversation” about court-packing.1
The most upsetting thing about this conversation is not the way it threatens the current balance of power within the American constitutional order, nor how it calls into question the false dogma (which was, for generations, a progressive article of faith) that the Supreme Court is the one-and-only ultimate interpreter of the Constitution.
The most upsetting thing about this discussion is its lack of imagination.
The current leading proposal for court-packing is drab and lame and slow and invites infinitely escalating tit-for-tat that will inevitably destroy the Supreme Court as a component of our Constitution. This bill could pass with a simple majority in the House, a Senate majority that agrees to end the filibuster, and the agreement of the President. The bill would simply add four seats to the Supreme Court. These four seats would be vacant upon creation, so they would be filled immediately by the President and the Senate that passed this bill. Democrats currently support this bill because it would allow their (currently Democratic) White House + Senate to turn the Supreme Court’s 5-1-3 conservative majority into a 7-5-1 progressive majority.
Naturally, if this ever happens, conservatives (next time they control government) will retaliate by creating even more seats on the Supreme Court, then progressives will retaliate the same way, and on and on until the Supreme Court has 1,500 justices. The current Supreme Court’s small workload and slow pace also mean that it would take ages to see results under this approach. It would also be widely perceived as an illegitimate subversion of the Supreme Court’s theoretically apolitical nature. Voters hate the idea, even as they are open to other (non-partisan) Supreme Court reforms. Court-packing is political poison that probably can never pass and wouldn’t work very well if it did.
Court-packers aren’t thinking big enough. They want immediate, partisan control of the courts, but haven’t thought through the best way to obtain it.
When people talk about the structure of the Supreme Court, they nearly always quote Article III, Section 1, plus the first sentence of Section II:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.
So far, all of the court-packing plans (going back to FDR’s) have been attempts to get around that “hold their offices during good behaviour” clause. Court-packing is one approach; you don’t have to care about the lifelong terms of the conservatives if you just outnumber them with progressives. Another approach is to impose pseudo-term limits by forcing justices to “senior status” with diminished responsibilities after 18-year terms. (This is probably unconstitutional.) Sometimes Congress bleats feebly about “jurisdiction stripping,” which is pointless (with rare exceptions).
But the jurisdiction stripping bit is closer to the mark. The most important leverage Congress has over the Supreme Court (and the judiciary as a whole) is, without a doubt, in the next clause:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The Supreme Court automatically takes cases between states, or where a state consents to be sued by a private citizen, or in a handful of other cases. This is darned rare. Between 1960 and the mid-2010s, only 140 of these cases were even filed at the Supreme Court, total. That’s about 2 “original jurisdiction” cases per year. (The Court declined to hear half of them, although I’ve never been convinced that the Court constitutionally is allowed to do that.) Most of these original jurisdiction cases have to do with tetchy but technical issues like water usage and boundary lines. When you, the average citizen, thinks of the power of the Supreme Court, you aren’t thinking about its original jurisdiction.
You’re thinking about the Court’s appellate jurisdiction.
The Supreme Court’s main function in our system right now is to resolve disagreements between the 13 Circuit Courts of Appeal. Those circuits resolve all federal court cases, but sometimes they interpret the law (and/or Supreme Court precedents) differently. When the circuits disagree about the law—or, rarely, when one circuit acting alone gets the law egregiously wrong—the Supreme Court takes the case for final appeal and resolves the disagreement. Dobbs was appealed from the 5th Circuit Court. So was Roe. Obergefell was appealed from the 6th Circuit after the 6th disagreed with other circuits about gay marriage. The Obamacare case, NFIB v. Sebelius, came from the 11th Circuit. Brown v. Board of Education was a set of five separate cases from various circuits. And so on. For every 2 original jurisdiction cases filed, there are almost 8,000 appellate jurisdiction cases filed at the Supreme Court.
Since these are all appellate cases, the Court does not have to hear them. In fact, the Court already has the power to refuse them, and does in fact reject the vast majority. (Of the 8,000, it resolves a bit less than 200 per year.) But it goes beyond that: Congress does not have to allow the Court to hear these cases, either. As the Constitution says, Congress can make “such exceptions” to the Court’s appellate power as it chooses, under “such regulations” as Congress chooses to make.
That’s where an aggressive Congress + White House trifecta can plant its flag. Don’t try to change the Court’s ideological balance, a fraught and doomed political maneuver. Don’t touch the Supreme Court at all! Just route around it.
Although we are used to all cases being appealed to the Supreme Court, back in the 19th Century, right of appeal to the Supreme Court was pretty limited. For example, the Supreme Court never ruled on the infamous Sedition Act of 1798, because it never heard a case about the Sedition Act, because Congress granted no right to appeal Sedition Act cases to the Supreme Court. This was not a clever bit of villainy by President Adams’ Federalists to subvert the Supreme Court. It was pretty routine for Congress to allow lower courts to enter final resolution in cases, with no further right of appeal up to the Supremes. If a lower court got a case badly wrong, Congress could always step in to correct it directly, without the Supreme Court needing to get involved.2
This made obvious logistical sense, too. The United States Supreme Court sits in Washington, D.C., which is a pretty long way from, say, Maine. Even if the Supreme Court had found a broad appellate workload manageable, appealing cases to them meant that both parties had to travel weeks across country, at great expense, to present and argue the case before the justices. Better to resolve most cases in the circuits, Congress thought. Thus, the Supreme Court’s appellate jurisdiction was relatively uncommon.
Enough history, though. Our goal is to seize partisan power over the federal judiciary. How can we abuse this history lesson to accomplish that?
Meet the Superior Court of Resolution! This is a new lower court, one of the “inferior courts as the Congress may from time to time ordain and establish.” Congress can create this new court whenever it wants to. Just like court-packing, this would require only simple majorities, the end of the filibuster, and a like-minded president.
The Superior Court of Resolution has… I dunno, let’s say five judges. Its job is to serve as a final court of appeal from all the circuit courts. In particular, it is required to seek out and resolve circuit splits, where different circuits have interpreted the law differently.
“But wait! Isn’t that the Supreme Court’s job?”
Not anymore! In Title 28, Section 1254 of the U.S. Code (which deals with appeals from the Circuit Courts) just delete “Supreme Court” and replace it with “Superior Court of Resolution.”3 There will be no further general right to appeal from the Superior Court of Resolution to the Supreme Court. This will allow the Supreme Court to focus on doing a really great job on all its original jurisdiction cases (all two of them that get filed every year.) Great job! You’ve taken a huge burden off the Supreme Court’s overtaxed shoulders!
You’ve also just moved all the most important cases in the nation from the Supreme Court to the Superior Court of Resolution. Future cases like Roe and Dobbs and Citizens United will be decided by these guys. And, happy day, you who just created the Superior Court of Resolution can now name whichever five judges you want to fill all five seats, where they will remain until death.
Democrats, if you created the Superior Court of Resolution, you can fill it with all the candidates who got passed over for Justice K.B. Jackson: Sri Srinivasan, J. Michelle Childs, Lucy Koh, maybe Stacey Abrams, and, what the heck, Merrick Garland. 5-0 progressive majority. Republicans, if you created the Superior Court of Resolution, you could fill it with anyone left from the Federalist Society list. 5-0 conservative majority.
Someone might complain that the Constitution’s text guarantees some appellate jurisdiction in the Supreme Court, and, hey, maybe they’re right: the Constitution does say the Supreme Court “shall have appellate jurisdiction” with “exceptions” decided by Congress. Creating exceptions is different from removing appellate jurisdiction altogether. This problem is easily solved: Congress can add a provision stating that any case where the Superior Court of Resolution returns an evenly-divided decision must be appealed to (and heard by) to the Supreme Court. Of course, since there is an odd number of judges on the Superior Court of Resolution, this could only happen when one of the judges recuses or vacates his seat, so it will happen effectively never. But it meets whatever narrow requirement the Constitution imposes for the Supreme Court having some appellate jurisdiction.
But why stop there? You have a trifecta in Congress, and you’re bound to lose it at the midterms, so don’t burn daylight: leave a legacy! Congress can also create new lower courts. Today, there are 13 circuits, and a total of about 870 judges. These judges routinely complain that they are overwhelmed, that their caseloads are huge, and that the backlog is so large that it make a travesty of our promise of swift, blind justice.4 Why don’t we help them out? There should probably be 30 circuits—enough for each circuit to cover roughly two states/federal territories—and 4,500 judges. Y’know, to get those caseloads down. Certainly not because it means you get to appoint 4,500 federal judges who match your ideology… although won’t that be a nice side benefit?5
Then, as the final fillip, Congress may clarify to its many new judges that, since the Supreme Court will no longer be hearing most constitutional cases, the Superior Court of Resolution now has the authority to interpret all existing Supreme Court precedents, and that lower courts are bound to follow their interpretation. The Superior Court of Resolution may even overturn Supreme Court precedent when principles of stare decisis dictate that (in the Superior Court of Resolution’s judgment) precedent should be overturned. On paper, the Superior Court will respect the standing precedents of the federal judiciary, weighing their stare decisis value against the value of deciding a case correctly. In practice, we all know how this plays out.
What will the voters say? If the opposition can even explain to the voters what just happened… probably not much. Voters tend to be very sensitive to messing around with the Supreme Court, but much less so to anything happening with the lower courts.
If the voters do seem unsettled by what you’re doing, all you need to do is slow down. Start by creating the Superior Court of Resolution, but make it only a mere occasional intermediary between the appeals courts and the Supreme Court. Then make it a mandatory intermediary. Then start narrowing the Supremes’ powers to hear cases on appeal from the Superior Court. Boil the frog! (Besides, who cares what the voters say? You’re going to lose the trifecta at midterms anyway, but a judicial legacy lasts a generation, right?)
That is how a real man seizes control of the federal judiciary. Not putting four new judges on a single nine-member court! That’s a beta wuss move! It hardly even counts as packing! Bro, do you even coup? You seize control of the judiciary by wresting all important powers away from the so-called “Supreme” court, investing those powers instead with a new court full of hand-picked judicial stalwarts, and then creating four thousand likeminded new judges to enforce help enforce their views. All. Totally. Legal.
…Of course, then the next party comes in and undoes it all.
The other party will eventually win a trifecta, and they can do all the same things. They can dissolve all the new courts you created,6 then create new courts (and new judges) of their own. Maybe instead of destroying the Superior Court of Resolution, they just strip its appellate jurisdiction and assign all appellate cases to, say, the already-existing 5th Circuit, a known conservative circuit… and then add thousands of new judgeships just to that circuit. When the other party takes power, they will tit your tat harder than a hydraulic press on Jupiter… and then they’ll tit a little harder, for revenge.
No matter how you seize control over the judiciary, this will always be the case. A future Congress can always press ctrl-z on it, and then flip the judiciary the other way. It’s a lot of work, but the power is there and always has been.
That is the actual point I was trying to make with this silly (and dangerous) proposal. The Constitution creates three co-equal branches of government… yet Congress, as the most elected and most representative branch, is undoubtedly the first among equals. When it comes down to it, it is Congress, not the Supreme Court, that has the greatest authority to say what the Constitution means. What authority the Supreme Court has today has mostly been ceded to it because of its persuasive power, on sufferance of a dysfunctional and leaky Congress.
For that reason, it is critically important to elect sound legislators of good moral character, great intelligence and erudition, deep respect for the Constitution… and, yes, on occasion, the wisdom to know when to tell the Supreme Court to take a hike.
I do not think that is likely to happen very often at the moment, since we currently have the best Supreme Court in at least a century… but that’s precisely the moment to take stock and consider one’s grounding principles. We do not want to repeat the mistake of becoming enamored with an ideologically-aligned Court.
By “we”, I (of course) mean America’s upper social class, accurately dissected by Mencius Moldbug into five components: the Voice, the School, the Brain (which, in post-covid days, we might sarcastically rename the Science), the Foundation, and the Conversation. The Conversation has “national conversations.” By unwritten convention, no other conversations in this country, however widespread or intense, can be described as “national conversations.” (This convention, of course, was decided on by the Voice, a close ally of the Conversation.)
Standard disclaimer: when discussing class in America, it is important to remember that social class and economic class are not the same. The Conversation takes place among what Michael Church described as the Gentry, who come from all income levels but form a very distinct—and distinctly left-wing—society. (By Church’s taxonomy, I am clearly a G3 and very much part of The Conversation, although I am very much opposed to the Left.)
This footnote is the edgiest thing in this article.
You may ask: “But what if a lower court struck down a law passed by Congress?” Quite simply, this was unthinkable. In the past seventy years, the Supreme Court has struck down, in whole or in part, 506 laws duly passed by the United States Congress and signed into law. Lower courts have been similarly (and increasingly) aggressive about striking down laws.
In the first seventy years of the Supreme Court’s operation, would you care to guess how many total laws the Supreme Court struck down? Think it over for a moment.
Ready?
The answer is…
Two. The Supreme Court struck down only two total laws between 1790 and 1860. Those laws were: first, a tiny part of the Judiciary Act of 1789, in Marbury v. Madison. (This was truly tiny. Akhil Amar has argued that the Marbury Court struck down a phantom, a misinterpretation of Section 13 of the Judiciary Act, and did not touch the actual law of Congress, so nothing changed as a result.)
Second, the Missouri Compromise, which was struck down in Dred Scott v. Sandford, infamously one of the most immoral and flagrantly lawless Supreme Court decisions of all time.
Outside of those two examples, the Supreme Court always agreed with Congress’s resolution of difficult constitutional questions—something Congress, back in those days, took very seriously and debated at great length before voting on anything. (Today, of course, our representatives in Congress only look at the Constitution as an obstacle to get around, or to use against their opponents.) From upholding the Bank of the United States to affirming Congress’s power to tax carriages, the Supreme Court let Congress drive interpretation of the Constitution, not the Supreme Court—and certainly not some upstart lower court.
There are quite a few other places where you have to do the same thing, but those are clerical details. You get the idea.
I’m not citing sources because you, the partisan legislator, don’t really care whether this is true. Your goal is partisan control of the judicial branch, and facts don’t have to be true to be good in campaign ads!
Perhaps you object: “But the Senate will never have time to appoint 4,500 federal judges! It’s a complex, weekslong parliamentary process that requires individual cloture votes for each one!”
I reply: “My dude, the Senate in this scenario just got rid of the filibuster. It has effectively ended the reign of the Rules of the Senate and now functions by bare majority, just like the House of Representatives. If this post-filibuster, post-rules Senate majority chooses to confirm four thousand judges in one vote, without a single hearing, who’s going to stop them?”
The question fails to understand the depth and breadth of this proposal’s attack on the American system.
Those Article III judges appointed by the last trifecta, now that all their seats have been dissolved, can all be transferred to the noble District Court for the Northern Mariana Islands by operation of law, similar to how the Judiciary Act of 1891 reassigned judges from the dead Circuit Courts to the new Circuit Courts of Appeal. If they are unwilling to move to the Northern Mariana Islands to serve, they are, of course, free to resign.