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Packing the Court?

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In April, President Biden created a commission to study expanding the Supreme Court. Expanding the court would allow Biden to appoint new judges, presumably to offset the conservative judges with liberal judges. This tactic is commonly known as “court packing” and the best known attempt to do this was by FDR. On the face of it, expanding the court does seem constitutional. Congress does set the size of the court and it did vary from six to ten members until 1869. There are those who argue that it is not constitutional, as one would expect. Also, as one would expect, people tend to shift their position on this issue based on their political allegiances and who holds the White House and Congress. But, as always, my approach is to present a consistent and principled position that does not depend on my political interest now. Politically, I would certainly favor Biden packing the courts. But my principles are not simply a matter of what I favor at the moment. For the sake of the argument to follow, let it be assumed that court packing is constitutional. If it is not, then what follows would be irrelevant. Interestingly, it seems likely that the Supreme Court would need to rule on the constitutionality of expanding the Supreme Court—so if one party holds the majority, they could always block expansion in this manner. But now to the discussion. The most obvious argument against packing the court is based on the need to preserve the norm of not using this tactic. Politics, like any game, depends heavily on the participants agreeing to and abiding by the rules of the game (be they formal or informal). While some players stick to the norms out of respect, others follow them for pragmatic reasons: if they break the norms, then the other players will respond by punishing them or by breaking the norms themselves. Since court packing seems constitutional, what serves to keep people in check are the consequences of breaking the norm of not using this tactic. The obvious defect. . .

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News source: A Philosopher's Blog

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