“Court packing” is not the same as increasing the number of Supreme Court justices.

 Court-packing is of course wrong, if the aim is depoliticize the selection of Supreme Court justices, but that’s not the same as increasing the number of justices on the Court, (which could, for example, be done by staggering the selection of additional justices over several administrations), which the authors of this article don’t address. 

Similarly, their criticism of term limits for Supreme Court justices is a criticism of a specific way of arranging such limits, not of the practice in general.

The authors seem rather more concerned with how to defend the Court from what they perceive as further politicization than with the question of how we can make it less political — and their use of word “court-packing” suggests that the question itself has become politicized without their being aware of it.

On the other hand, they do helpfully link to Hamilton’s Federalist 78 about the judiciary, which I haven’t encountered in decades and should study. 

At first blush, it seems Hamilton is saying that the permanency of judicial term limits is “indispensable” because the courts represent the weakest of the three branches of government, which is interesting and not how I tend to think about the Supreme Court at all; serving to remind us that the Court, unlike the other Branches, does not have an army or checkbook at its disposal. 

I believe that the problem that people are seeing, however, is that the distinctions between branches of government are fast disappearing while the distinctions between factions are fast increasing. 

You can see this very clearly in the executive and legislative branches, particularly under the former President, but it is occurring in the Supreme Court as well, where decisions have been made that not only bolster Republican causes (Heller, Hobby Lobby immediately come to mind) but directly bolster Republican political power: Bush v. Gore, Citizens United, and Shelby, to name the most visible. 

You can see it in the number of decisions split upon party lines. You can see it in the way that the more weakly argued opinions tend to be those of the majority.  You can see it in the absurdly contentious nominating process and the dark money that goes into it. And, of course, justices don’t help the cause of judicial independence when they fraternize with high ranking officials and wealthy donors from their own party. 

Very worrisome.

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