I shouldn't have to need to do this, but let me explain to you why court packing is such a bad idea. 1/

First, some observations. The most important one- VERY FEW OF THE PEOPLE CALLING FOR COURT PACKING ARE LAWYERS OR JUDGES. They are mostly political pundits and people from the political field. This is very important, and very telling. 2/

Political types, not to put a fine point on it, literally have no idea how the legal system works. They think of the Supreme Court as nothing more than a super-legislature that decides a few hot button issues like abortion and gay marriage. 3/

And more importantly, they don't care how the legal system works. Indeed, and this is something that runs throughout political discourse, they tend to revel in their ignorance about things. 4/

The same impulse that causes them to drown out epidemiological voices on the coronavirus leads them to shout over the legal profession on the Supreme Court.

And since they are obsessed with spin, they do anything to avoid saying the words "court packing". 5/

"Supreme Court enlargement", "judicial reform", etc. They won't say the words, even though they know the intent of the proposal is to pack the court.

And here's the thing- what kind of "reform" involves completely ignoring the actual experts and participants? 6/

Lawyers and judges need to have enormous impact on any attempts to mess around with the courts. We're both the people who know the most about the subject and the people who have to live with whatever we do. So tell me why are we listening to political commentators at all? 7/

So what would happen if Democrats packed the courts? Well, the most obvious thing that will happen is that it will start a cycle of reprisal and counter-reprisal. What do you think the Republicans will do the next time they hold the Presidency and Congress? 8/

You guessed it, they will pack the courts back. (I know there are some clever Democrats who say things like "the Republicans will never be able to win elections once we push through electoral reforms". Don't bet on this.) 9/

So the Democrats raise the Supreme Court to 13 seats in 2021. Then the Republicans, in 2025 or 2029, will raise it to 15 seats. Or maybe even 17 or 19, to give themselves a 2 or 3 justice majority. And then the Democrats, in 2033, to 21 or 23 or 25. It goes on forever. 10/

And this would be catastrophic FOR THE SUPREME COURT. They don't have the infrastructure for 25 members, they would need a bigger budget, their decision making process would become more and more unwieldy, etc. 11/

Lower courts do everything they can to avoid having this many judges on a case. For instance, the 9th Circuit has 29 judicial slots, but decides its en banc cases with panels of 11. 12/

SCOTUS couldn't do this- especially since everyone knows the job of the new justices would be to uphold the interests of the party who put them in. 13/

To see this, imagine if the 25 member SCOTUS had the 9th circuit rule. They randomly select a panel of 11 for the abortion case. If they randomly draw a majority of pro-lifers, even though the Court is majority pro-choice, Roe v. Wade is toast. 14/

A lower court like the 9th Circuit can do this, because its en banc rulings are subject to Supreme Court review. But SCOTUS couldn't. Every judge has to sit on every case. 15/

I could also imagine, though this is more speculative, that the added justices would not be welcomed on the Court. They'd be seen as potentially illegtimate, and this could result in all sorts of schemes to weaken their power. 16/

The real cost of court packing, however, would be to the remainder of the American legal system, i.e., the 99 percent of cases that don't involve gay rights or abortion. 17/

As most people know, we have a common law system based on precedent. The Constitution puts the Supreme Court at the apex of that system of precedent (Article III says the judicial power sits in one Supreme Court and such inferior courts as Congress creates). 18/

So the Supreme Court propounds doctrines in many many areas of great importance. Most of which the average political pundit has never heard of. 19/

The Court determines pleading rules, discovery rules, procedure, when evidence is suppressed in criminal cases, antitrust and bankruptcy, tax etc. And everyone- lawyers and judges, obviously, but also clients who get legal advice, rely on the rules announced in these cases. 20/

The key to the common law system is what we call stare decisis (i.e., the force of precedents) and consistency. We are able to advise our clients "you can go ahead and do this, it's legal" based on the fact that precedents get followed in court just like statutes are. 21/

Already, when there is a Supreme Court vacancy, we have to sometimes give some more circumspect advice. "Under case X, you can do this, but it was 5-4 and the new justice may go the other way." But in a situation of court packing, all bets will be off. 22/

POTUS adds 4 justices to the Court and every 5-4 and 6-3 decision, including in many areas that commentators haven't even thought about, will be up for grabs. Good luck giving legal advice! Good luck being a lower court judge trying to figure out the law! 23/

And, of course, it may all swing back 4 years later when the other party gets control and more judges are added.

And these cases will often be harder to predict than the hot button ones. We can tell what Amy Coney Barrett will do in abortion cases. 24/

But do we know how 4 new Democratic justices will vote in Indian tribal rights cases? In search and seizure cases? In copyright and trademark cases?

It will be a complete mess for everyone within this system. 25/

None of this is to say that I don't see the POLITICAL argument for what some Democrats are proposing. I do. I don't think it's nearly as strong as they do- the alternative histories where court packing supposedly wasn't a huge debacle for FDR are kind of tiring. 26/

But yes, the courts have been a subject of tit-for-tat political fighting for a long time. I get that. And there's political justifications for meeting provocations with a severe response. 27/

The real problem I have is that 99 percent of the people commenting on court packing have literally given more thought to the issue of what words to use to describe court packing than to what their proposals would do to the courts. END/