Joshua Braver is out with a thoughtful new paper on history of Court-packing in US. I highly recommend, though I remain unpersuaded by its central thesis
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3483927

Braver defines Court-packing as “the manipulation of the Supreme Court’s size primarily to change [its] ideological composition.” His goal is to show that there are no good precedents of such actions for contemporary progressives to build upon

Congress has altered the Court’s size 7 times. Braver puts these episodes in two categories.

Category one includes those changes in Court size that were tied to increases in the number of judicial circuits (in 1807, 1837, and 1863) and hence were motivated by neutral administrative concerns rather than ideological capture

It’s true that these three expansions were motivated in part by judicial performance concerns. As the nation expanded westward, more states necessitated more circuits which necessitated more justices to supervise them.

But it’s also true that the dominant governing coalitions used these alterations to maintain a pro-slavery majority on the Court in 1807 and 1837 and a pro-Union majority in 1863.

Braver’s account of 1807 and 1837 doesn’t even mention the slavery-related motivations for Court expansion.

His account of 1863 is better, acknowledging that Lincoln’s GOP faced a group of justices who were not only pro-slavery, but also appeared to be reaching out to obstruct the CiC’s conduct of the war itself.

He also acknowledges that such behavior on the part of the judges sparked radical proposals for abolishing the Court altogether and creating a new one in its stead.

But he then curiously concludes that Lincoln’s adoption of a more moderate plan (adding a single seat) indicates that he wasn’t engaged in Court-packing at all.

Lincoln’s moderate plan not only added a 10th justice, it also reorganized the circuits to ensure a northern rather than southern majority on the Court. How can this not count as an episode of Court packing?

Braver’s second category includes 4 episodes, which occurred in 2 pairs—one after the election of 1800, the other after Lincoln’s assassination. Both sets involved clear efforts at partisan/ideological capture of the courts

After losing his bid for reelection in 1800, lame-duck Pres. Adams signed a bill reducing the Court’s size from 6 to 5, effective upon the next vacancy. This is a clear instance of partisan Court-packing, and Braver acknowledges it as such.

Incoming Pres. Jefferson then signed a bill repealing that change, thus restoring the Court’s size to 6. This strikes me as an equally clear instance of Court-packing—more justified, but no less partisan or ideological.

But Braver characterizes Jeffersonian repeal bill as not Ct-packing at all, since Jefferson merely restored Ct’s size to 6. That line seems arbitrary. Given norm against partisan Court-packing, most efforts are likely to involve minimum change necessary to achieve relevant goals.

For the Jeffersonians, moving from 5 seats to 6 seemed adequate, particularly since they were simultaneously in the process of impeaching Federalist justices, a fact that Braver doesn’t mention

As for the Civil War/Reconstruction episode, Braver acknowledges that it represented GOP Court-packing. By reducing the Court’s size from 10 to 7, then increasing it back to 9, congressional Republicans essentially stole a seat from Johnson and gave it to Grant

Braver says this situation represents an exception to the norm against packing because Johnson was an unelected president who lacked the support of either party.

This distinction seems to come out of nowhere, and it seems far more straightforward to simply acknowledge that courts can be packed in ways that either undermine or reinforce constitutionalism and democracy, depending on the circumstances

If Congress is trying against all odds to build multi-racial democracy in US South, Pres is doing everything in his power to undermine the effort, & Ct is threatening to side with Pres, then modest Ct-packing may reinforce more than undermine fundamental norms of constit democ.

Thus, even granting Braver’s dismissal of 1807, 1837, & 1863 changes in size, we are left with a history that demonstrates recurrent instances of Court setting itself up as a barrier to ascendant regime, & ascendant regime finding it necessary to threaten Ct-packing in response.

The Jeffersonians, Reconstruction Republicans, and New Deal Democrats each faced a Court that was hostile to the central policy commitments of their political coalition—commitments that the electorate had clearly endorsed

If Dems win in 2020, they will find themselves in a similar pickle, as @imillhiser and others have been arguing https://twitter.com/TakeBacktheCt/status/1199329469498109952?s=20

And just as Jefferson’s Court-packing was a justifiable response to Adams’s Court-packing that preceded it, so also a post-2020 Dem Court-packing bill may be a justifiable response to McConnell’s Court-packing that preceded it

The interpretation of all of these episodes is partly a question of baselines (or Overton windows).

Braver describes Ct-packing as “most radical form of retaliation” against objectionable Ct decisions, but this can't be right. Braver himself acknowledges that during Civil War, abolitionist Sen. Hale proposed abolishing existing Ct and creating new one in its stead.

He might also have noted that FDR admin considered a proposal to shift all of SCOTUS’s appellate jurisdiction to a new court, staffed entirely by FDR. Or that New Dealers had repeatedly called for abolition of judicial review

Braver closes by coming out in support of court-curbing measures other than alterations in the Court’s size. One virtue of such measures, he notes, is that they often work merely by being threatened. But this, of course, is also true of Court-packing.

And his main historical example of successful Ct-curbing is CW/Reconstr. GOP, who also engaged in Ct-packing! So if we’re drawing lessons for post-2020 Dems: Assuming continued evidence of partisan judicial intransigence, Dems should threaten to pack Ct and curb it elsewise

In sum, as with other forms of Court-curbing, one key effect (and sometimes purpose) of Court-packing proposals is to encourage justices to think twice about undermining the core commitments of the newly ascendant regime