Against Court Packing, or a Plea to Formally Amend the Constitution

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Against Court Packing, or a Plea to Formally Amend the Against Court Packing, or a Plea to Formally Amend the

Constitution Constitution

Jill M. Fraley

Washington and Lee University School of Law

, [email protected]

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Jill M. Fraley, Against Court Packing, or a Plea to Formally Amend the Constitution, 42 Cardozo L. Rev.

2777 (2021).

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2777

AGAINST COURT PACKING, OR A PLEA TO FORMALLY

AMEND THE CONSTITUTION

Jill M. Fraley

†

TABLE OF CONTENTS

INTRODUCTION ......................................................................................................... 2777

I. THE RELATIONSHIP BETWEEN CONSTITUTIONAL AMENDMENT AND COURT

PACKING ............................................................................................................ 2783

II. EVALUATING THE ORIGINAL ARGUMENTS AGAINST COURT PACKING ......... 2785

A. A Brief History of Court Packing ......................................................... 2786

B. Court Packing and Legitimacy of the Supreme Court ....................... 2787

C. Court Packing & Judicial Independence ............................................. 2794

D. Court Packing as Against Constitutional Norms ............................... 2796

III. MAKING EFFECTIVE CONSTITUTIONAL CHANGE ............................................ 2797

A. The Failure Formal Amendment ......................................................... 2798

B. Accounts of Informal Constitutional Change ..................................... 2799

C. Structure, Rights & Effective Constitutional Change ......................... 2805

D. Court Packing and Effective Constitutional Change ......................... 2810

CONCLUSION ............................................................................................................. 2811

INTRODUCTION

Court packing

has been, until recently, essentially a pejorative

term. Court packing was, politically and constitutionally, “out of

† Professor of Law, Washington and Lee University School of Law. The author would like to

thank the Law Review editors for their work and commitment to this project.

Mechanistically, court packing refers to altering the number of Justices on the Supreme

Court. There might be a variety of reasons to do so. This term, however, particularly refers to

efforts to impact the ideological composition of the court through transformative appointments.

2778 CARDOZO LAW REVIEW [Vol. 42:7

bounds,”

in other words, “a wholly illegitimate means of seeking to

alter existing Supreme Court doctrine.”

As a result, “[n]o serious

person, in either major political party, suggests court packing . . . .”

That is no longer true.

The pressure to consider court packing began after the Senate

refused to hear confirmation proceedings for nominee Merrick Garland

and instead waited to allow incoming President Trump to fill that seat

months later.

This refusal to fill a vacant seat, according to some, was

court packing because it effectively reduced the size of the Court during

the end of President Obama’s term.

The renewed interest in court

packing did not turn out to be a fleeting idea or mere “academic

Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 VAND. L. REV.

465, 540–41 (2018). Grove explained that we find it “self-evident” that “‘packing’ the Supreme

Court is wrong.” Id. at 467; see also Marin K. Levy, Packing and Unpacking State Courts, 61 WM.

& MARY L. REV. 1121, 1124 (2020) (“The conventional wisdom has long been that federal court

packing is something the President and Congress ‘just cannot do.’ Even though the Constitution’s

text does not directly prohibit expanding or contracting the size of courts to change their political

makeup, many have argued that there is a longstanding norm or convention against doing so.”

(quoting Michael C. Dorf, How the Written Constitution Crowds out the Extraconstitutional Rule

of Recognition, in THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION 74 (Matthew D.

Adler & Kenneth Einar Himma eds., 2009))).

Ronald J. Krotoszynski, Jr., The Unitary Executive and The Plural Judiciary: On the

Potential Virtues of Decentralized Judicial Power, 89 N

OTRE DAME L. REV. 1021, 1063–64 (2014).

Id. at 1064.

Levy, supra note 2, at 1125 (explaining that the justification for packing the Supreme Court

“rests, in part, on a claim that the majority-Republican Senate ‘unpacked’ the Supreme Court by

refusing to hold hearings upon the nomination of Judge Merrick Garland in 2016—in effect, the

Senate reduced the number of seats on the Court from nine to eight, for political gain” (citing

Michael Klarman, Why Democrats Should Pack the Supreme Court, TAKE CARE (Oct. 15, 2018),

https://takecareblog.com/blog/why-democrats-should-pack-the-supreme-court [https://

perma.cc/UM3P-DA9L])).

See id. at 1125, 1130 (“Specifically, there are those who argue that by holding open Justice

Scalia’s seat, the Republicans shrank or ‘unpacked’ the Court by one Justice.”).

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2779

fantasy;”

it has’ been in the wind regularly since then,

including

making it onto the topics covered by Democratic presidential

candidates.

Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L.J. 148, 165

(2019). Epps and Sitaraman offer a variety of reforms including increasing the size of the Court.

Id.; see also Levy, supra note 2, at 1125–26 (“[Court packing] has unquestionably happened in

the past several years in state courts across the country. . . .” (footnotes omitted)). Academic

interest in court packing has, if anything, increased since 2018. See e.g., Marin K. Levy, Packing

and Unpacking State Courts, 61 WM. & MARY L. REV. 1121 (2020) (examining the history of court

packing at the state level, and arguing that it has been done regularly and “successfully”); Joshua

Braver, Court-Packing: An American Tradition?, 61 B.C. L. REV. 2747 (2020); (examining the

history of court packing and arguing that it poses “unprecedented dangers” if pursued in the

current political climate); Stephen M. Feldman, Court Packing Time? Supreme Court Legitimacy

and Positivity Theory, 68 BUFFALO L. REV. 1519 (2020) (arguing that court packing is unlikely to

weaken the court’s popular support); Richard Mailey, Court-Packing in 2021: Pathways to

Democratic Legitimacy, 44 SEATTLE U. L. REV. 35 (2020) (constructing an Ackerman-based

approach to legitimacy in court packing); Alex Badas, Policy Disagreement and Judicial

Legitimacy: Evidence from the 1936 Court-Packing Plan, 48 J. LEGAL STUD. 377 (2019) (arguing

that court packing is not a threat to legitimacy as much as policy disagreement is).

See, e.g., Aaron Blake, Pack the Supreme Court? Why We May Be Getting Closer, WASH.

POST (Oct. 9, 2018), https://www.washingtonpost.com/politics/2018/10/09/pack-supreme-

court-why-we-may-be-getting-closer [https://perma.cc/SH3J-4UX3]; Michael Klarman, Why

Democrats Should Pack the Supreme Court, T

AKE CARE (Oct. 15, 2018), https://takecareblog.com/

blog/why-democrats-should-pack-the-supreme-court [https://perma.cc/UM3P-DA9L]; Ian

Samuel, Kavanaugh Will Be on the US Supreme Court for Life. Here’s How We Fight Back,

UARDIAN (Oct. 9, 2018, 4:00 PM), https://www.theguardian.com/commentisfree/2018/oct/09/

kavanaugh-us-supreme-court-fight-back-court-packing [https://perma.cc/9KSU-73UZ]; David

Faris, Democrats Must Consider Court-Packing When They Regain Power. It’s the Only Way to

Save Democracy, WASH. POST (July 10, 2018), https://wapo.st/2L3hHOC [https://perma.cc/

N2XQ-B4XX].

See Pema Levy, How Court-Packing Went from a Fringe Idea to a Serious Democratic

Proposal, MOTHER JONES (Mar. 22, 2019), https://www.motherjones.com/politics/2019/03/

court-packing-2020 [https://perma.cc/VT2M-9E87] (finding that a number of candidates

acknowledged the possibility of court packing in the future); see also Philip Elliott, The next Big

Idea in the Democratic Primary: Expanding the Supreme Court?, TIME (Mar. 13, 2019, 11:24 AM),

https://time.com/5550325/democrats-court-packing [https://perma.cc/AR5S-HE4W]; Burgess

Everett & Marianne Levine, 2020 Dems Warm to Expanding Supreme Court, P

OLITICO (Mar. 18,

2019, 5:04 AM), https://www.politico.com/story/2019/03/18/2020-democrats-supreme-court-

1223625 [https://perma.cc/JR8L-C67N]; Epps & Sitaraman, supra note 7 (discussing the

Democratic candidates and their interest in court packing); Jordain Carney & Rachel Frazin,

Court-Packing Becomes New Litmus Test on Left, HILL (Mar. 19, 2019, 6:00 AM), https://

thehill.com/homenews/senate/434630-court-packing-becomes-new-litmus-test-on-left [https://

perma.cc/MJ3V-5QXJ] (discussing candidate support for or willingness to consider court

packing); Michael Scherer, ‘Court Packing’ Ideas Get Attention from Democrats, WASH. POST

(Mar. 11, 2019), https://wapo.st/2J4MXxf [https://perma.cc/AL9K-XGA2] (noting the increased

viability of court packing, as measured by political interest).

2780 CARDOZO LAW REVIEW [Vol. 42:7

The death of Ruth Bader Ginsburg has only increased the fervor.

In 2020’s first presidential debate, President Trump asked Democratic

nominee Joe Biden whether he supported court packing; Biden refused

to answer.

In the Vice Presidential Debate, Mike Pence asked Kamala

Harris whether a Biden administration would seek to add seats to the

Supreme Court. Harris wouldn’t answer.

In other contexts, Harris has

said she is open to the idea.

Senator Ed Markey has suggested court

packing should be the plan, while Representative Alexandria Ocasio-

Cortez has said that “all options” should be “on the table” with respect

to the Supreme Court.

Elizabeth Warren agrees, saying, “It’s a

conversation that’s worth having.”

But why are we having this conversation? Historically speaking, I

argue court packing at the federal level, at least since the Civil War, is

inevitably linked to a thwarted desire for constitutional amendment.

In light of the difficulty of formally amending our Constitution,

Presidents have used judicial appointments to leverage the Supreme

Court.

A conservative might look at the history and say that the one

and only serious attempt at court packing, by Roosevelt in 1937, failed

because the legislation to change the court size failed. A liberal could

Senator Chuck Schumer said, “Let me be clear: If Leader McConnell and Senate

Republicans move forward with [a nomination], then nothing is off the table for next year.

Nothing is off the table.” Astead W. Herndon & Maggie Astor, Ruth Bader Ginsburg’s Death

Revives Talk of Court Packing, N.Y.

TIMES (Sept. 19, 2020), https://www.nytimes.com/2020/09/

19/us/politics/what-is-court-packing.html [https://perma.cc/J76V-5QEW].

Dan Merica, Joe Biden and Kamala Harris Don’t Want to Talk About Changes to the

Supreme Court, CNN (Sept. 30, 2020, 1:06 PM), https://www.cnn.com/2020/09/30/politics/joe-

biden-court-packing/index.html [https://perma.cc/JE3W-HD8B].

2020 Vice Presidential Debate, CNN, https://www.cnn.com/videos/politics/2020/10/08/

pence-harris-court-packing-dbx-2020.cnn [https://perma.cc/3KBG-UX53].

Everett & Levine, supra note 9.

Jeff Jacoby, Biden Is Right to Be Leery of Court-Packing, BOS. GLOBE (Oct. 27, 2020, 7:11

PM), https://www.bostonglobe.com/2020/10/27/opinion/biden-is-right-be-leery-court-packing

[https://perma.cc/SM3Z-FKB3]; Herndon & Astor, supra note 10.

Herndon & Astor, supra note 10. The conversation certainly seems to be happening now.

See Quinta Jurecic & Susan Hennessey, The Reckless Race to Confirm Amy Coney Barrett Justifies

Court Packing, A

TLANTIC (Oct. 4, 2020, 3:50 PM), https://www.theatlantic.com/ideas/archive/

2020/10/skeptic-case-court-packing/616607 [https://perma.cc/DG3F-K3W3]; Emma Green,

Biden and Harris Need an Answer on Court Packing, A

TLANTIC (Oct. 8, 2020), https://

www.theatlantic.com/politics/archive/2020/10/biden-harris-court-packing-vice-presidential-

debate/616656 [https://perma.cc/5T4J-WTVF].

See generally BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 50–57 (1993).

Bruce A. Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164, 1166 (1988)

(“Like Reagan, Roosevelt despaired of changing the Constitution by mobilizing the people to

enact formal amendments in the way described by [A]rticle V. Instead, he sought to change the

path of constitutional law by making transformative judicial appointments.”).

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2781

look at that same history and say, “a switch in time saved nine.”

Roosevelt’s efforts were successful, because packing the court was not a

desired outcome, only a mechanism for reaching a goal that was

obtained: constitutional change. Court packing is never an end in itself;

it is a method to establish constitutional change via, depending on your

perspective, either judicial activism or the interpretive power of the

Supreme Court. In light of this connection between court packing and

the desire for constitutional amendment, the best approach to analyzing

the viability of court packing as a political strategy within our

democracy is to examine court packing in the context of the broader

history of informal constitutional amendment.

This Article suggests the link between constitutional amendment

and court packing gives us the only good reason we currently have not

to pack the court. Recent political science scholarship on court packing

suggests that there are no excellent arguments against it. Evidence

suggests packing the court would not weaken the court’s legitimacy in

the eyes of the public.

In fact, some evidence suggests the court’s

legitimacy is more threatened by a conflict between the policy views

(values) of the public and the court.

One can surmise that a

disagreement on a particularly polarizing issue such as abortion might

even exacerbate the problem of legitimacy.

In the recent literature, Joshua Braver puts forth the primary

argument against court packing. Like those who argue against packing,

Braver focuses his concern on the relationship between court packing

and the danger to legitimacy.

Braver’s argument situates the historical

examples of court packing in their political context, focusing on his

definition of court packing as inter-branch retaliation. Braver’s

argument has three weaknesses.

First, Braver’s argument does not contend with the scientific

literature that provides two key findings: the court is not weakened by

packing, and is weakened by policy conflicts with public values. Braver

acknowledges that the problem of relying on history to determine the

risk to legitimacy is that there are too few examples.

Second, Braver’s

approach does not consider whether in the current political climate—

one that he describes as higher risk—the Court may already have

The phrase was a contemporary catchphrase used at the time. William E. Leuchtenburg,

FDR’s Court-Packing Plan: A Second Life, a Second Death, 1985 D

UKE L.J. 673, 673.

Feldman, supra note 7, at 1525.

Badas, supra note 7, at 377.

Braver, supra note 7, at 2749 (noting that the question is the “stability of the constitutional

system as a whole”).

Id. at 2751 (“But court-packing is almost unprecedented, and U.S. history provides little

evidence about its effects on the legitimacy of the Supreme Court.).

2782 CARDOZO LAW REVIEW [Vol. 42:7

damaged its legitimacy. Although it is beyond the scope of this article, I

would argue that in effectively reversing Roe v. Wade, the Court may

have damaged its legitimacy. In such circumstances, court packing

might provide no worse risks than other methods of remedying what is

already a crisis. Finally, and most relevant for this article, Braver’s

argument defines court packing as a retaliatory tactic between branches

of government.

Focusing on retaliation reduces court packing to an

instrument of revenge. Such a mechanistic view doesn’t fit with the

context of the most important court-packing attempts, from the U.S.

Civil War to the present, which have all strongly aligned with pushing

for shifts in constitutional rights. Most importantly, I would posit that

the recent and current calls for court-packing fit the model of

emphasizing constitutional rights.

This article offers an alternative argument against court packing,

focusing on the nature of court packing as a tactic to create social

change. I argue that the best argument against court packing is that it

will not, at least in the long term, create a path to secure constitutional

rights.

My claim is whatever constitutional rights change one seeks to

accomplish by court packing, that change is unlikely to stabilize and

therefore not worth any risks to legitimacy that court packing might

bring.

The solution lies not in the Court, but in the Constitution, which

Justices are sworn to uphold, and specifically in Article V. We have

become unable to formally amend the Constitution, and this must

change.

The consensus has been that informal constitutional change

happens, at a minimum, through the process of interpretation or more

grandly through a variety of mechanisms including citizen-driven

minor revolutions. The arguments have focused on the legitimacy of

this change.

My point is not the legitimacy of informal amendment, but instead

the enduring effectiveness of it. Structural informal amendment

appears to be far more effective and lasting than rights-based informal

amendment. Informal constitutional amendment lacks the same

binding effect as formal amendment, whether it comes by

interpretation or by other mechanisms. The content of the new

constitutional norm is less clear, and the potential for slippage over time

is high.

Id. at 2749 (defining court packing as “striking back against the Supreme Court” and “the

most radical form of retaliation”).

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2783

The problem is simple: Informal constitutional changes involve an

unavoidable fuzziness. In light of this, structural changes and rights-

based changes fare differently in the long term. Without text, it is much

more difficult to outline, preserve, and enforce a change in

constitutional rights. Changes in structure, on the other hand, benefit

from institutional mechanisms that preserve the status quo once

established.

The arguments for and against court packing should take this

understanding of informal constitutional change into account. Our

history suggests that court packing could be utilized more clearly and

lastingly for structural change, but not for a change in rights. Any

attempt at change in substantive rights likely would encounter slippage

in the future, even if temporarily effective.

The argument proceeds as follows: Part I explains the historical

and institutional relationship between court packing and constitutional

amendment. Part II sets forth the original arguments against court

packing and reevaluates those in the modern historical and legal

context. I conclude here that the original arguments against court

packing carry limited weight. This is not, however, an endorsement of

court packing. The heart of my argument is in evaluating court packing

in light of how different types of informal constitutional change have

endured. Thus, Part III focuses on making effective constitutional

change outside of Article V. This Part summarizes scholarship on

informal amendment and then considers how examples of rights-based

and structural change fared differently over time. This Part then

explains the values and risks of court packing in light of the potential

for informal constitutional change. I conclude that the better argument

against court packing is simply that it is unlikely to be effective for any

long-term informal constitutional change that is rights-based.

I. T

HE RELATIONSHIP BETWEEN CONSTITUTIONAL AMENDMENT AND

COURT PACKING

If citizens object to a constitutional decision of the Supreme Court,

the remedy is found in a constitutional amendment.

Amendment is a

This presumes, in some cases, that there is no part of the Constitution that is unamendable.

Some commentators would debate this. See Richard Albert, The Unamendable Core of the United

States Constitution, in C

OMPARATIVE PERSPECTIVES ON THE FUNDAMENTAL FREEDOM OF

EXPRESSION 13 (András Koltay ed., 2015) (discussing whether the Constitution requires

unamendability). But see J

EFFREY GOLDSWORTHY, PARLIAMENTARY SOVEREIGNTY:

CONTEMPORARY DEBATES 70 (2010) (“Of course, a constitution prohibiting the amendment of

some part of it could be overturned by revolution, but the same is true of any constitution.”);

2784 CARDOZO LAW REVIEW [Vol. 42:7

legal mechanism that, if done formally and correctly,

is outside the

purview of the Supreme Court because it is not subject to the challenge

of judicial review.

Bruce Ackerman explains, “[T]he familiar

refutation runs, the Supreme Court’s judgment may be overruled by

constitutional amendment. But this process is so cumbersome that it

can serve as a safety valve only under the most extreme conditions.”

The other option involves somehow changing the composition of the

Court’s votes. In that way, constitutional amendment and court packing

are, to some degree, natural alternatives.

The Roosevelt-era court packing discussions specifically relied on

the idea that court packing was directly linked to changing the

Constitution via interpretation. Testimony in front of the Senate

Judiciary Committee made that clear. Edwin S. Corwin, a leading

constitutional scholar, explained:

I think the realities of the situation are these: In the first place, the

doctrines of constitutional law of the majority of the Court involve

the entire program of the administration in a fog of doubt as to

constitutionality; and second, that cloud [of] doubt can be dispelled

within a reasonable time only by reestablishing that mode of reading

the Constitution which adapts it to present needs.”

President Franklin Roosevelt took essentially the same approach,

although ironically through a different contention. Roosevelt claimed

the Court was “reading into the Constitution words and implications

which are not there.”

Roosevelt specifically tied the process of

interpretation to the potential “to amend the Constitution by the

arbitrary exercise of judicial power.”

Samuel Issacharoff, Constitutional Courts and Democratic Hedging, 99 GEO. L.J. 961, 1002 (2011)

(noting that one reason for unamendability provisions of constitutions is to protect basic

structural provisions that are necessary to democratic governance).

Correctness might be less surely attainable than we would expect, as there are procedural

uncertainties. See Richard Albert, The Structure of Constitutional Amendment Rules, 49 WAKE

FOREST L. REV. 913, 914 (2014).

Another way of thinking about this is that the process of judicial review has no access to

proposed constitutional amendments: “[I]t is ‘difficult to comprehend how [a] proposed

constitutional amendment [could] be “unconstitutional” under our Constitution.’” Lawrence

Friedman, The Potentially Unamendable State Constitutional Core, 69 ARK. L. REV. 317, 318

(2016) (alteration in original) (quoting Answer of the Justices to the House of Representatives,

377 N.E.2d 915, 916 n.2 (Mass. 1978)).

Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013,

1057 (1984).

G. Edward White, The Constitutional Journey of “Marbury v. Madison,” 89 VA. L. REV.

1463, 1545 (2003) (quoting Reorganization of the Federal Judiciary: Hearing on S. 1392 Before

the S. Comm. on the Judiciary, 75th Cong. 167–68 (1937) (testimony of Edward S. Corwin)).

Id. at 1547.

Id.

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2785

II. E

VALUATING THE ORIGINAL ARGUMENTS AGAINST COURT PACKING

There are a variety of arguments against court packing, many of

them dating to the 1937 court packing plan put forward by President

Franklin D. Roosevelt.

This Part of this Article revisits that history

briefly and then focuses on the primary objections, evaluating them in

light of recent historical developments. The original arguments against

court packing remain the most common. These include a threat to the

Court’s legitimacy, a loss of judicial independence and deviation from

a long-established constitutional norm. These arguments are, to some

degree, intertwined.

With that said, there is some value to separating

them as much as possible for analytical clarity. Justice Breyer once

described judicial independence as “revolv[ing] around the theme of

how to assure that judges decide according to law, rather than according

to their own whims or to the will of the political branches of

government.”

In the context of court packing arguments, however, it

is more useful to separate “their own whims” from the “the will of the

political branches.”

Legitimacy of the Supreme Court is related

directly to the idea that the judicial branch upholds the Constitution

and the rule of law without judges making decisions based on their own

political positions. That is to say, legitimacy requires judges to not make

decisions based on internal pressures such as personal social, religious

or moral beliefs. Judicial independence, on the other hand, concerns

itself more with the ability of the other branches to either force a

decision or exact revenge for one. Judicial independence focuses on the

ability of the judiciary to withstand external political pressure.

Legitimacy, then, may logically be damaged if the public believes that

judges make decisions based on their personal beliefs when those beliefs

do not align with the values of the American public.

See generally Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Constitutional

Conventions, and the Judicial Separation of Powers, 105 GEO. L.J. 255, 269–87 (2017) (discussing

arguments against court packing).

See Barry Friedman, The History of the Countermajoritarian Difficulty, Part Four: Law’s

Politics, 148 U. PA. L. REV. 971, 1038 (2000) (finding in Roosevelt’s era three “interconnected, yet

distinct arguments” against court packing).

Charles Gardner Geyh, Can the Rule of Law Survive Judicial Politics?, 97 CORNELL L. REV.

191, 217–18 (2012) (quoting Stephen G. Breyer, Judicial Independence in the United States, 40

ST. LOUIS U. L.J. 989, 989 (1996)).

Id. at 217.

William N. Eskridge, Jr. & Philip P. Frickey, Law as Equilibrium, 108 HARV. L. REV. 26, 43

(1994).

Recent research supports this conclusion. See Badas, supra note 7, at 377.

2786 CARDOZO LAW REVIEW [Vol. 42:7

A. A Brief History of Court Packing

The story of Roosevelt’s court packing plan has been described as

a “twice-told tale,”

but this is a vast understatement.

Court packing

history is a perpetual favorite, perhaps precisely because it is so political.

Admittedly, it is virtually impossible to tell a historical tale without

adopting an interpretive position and moreover a lens that is, at least a

little, either conservative or liberal. However, histories of the court

packing plan tend to be written and rewritten with determinedly

political glosses: Did the court packing plan fail or was it abandoned as

unnecessary?

The pivotal moment is often regarded as the “switch in time that

saved nine.” The phrase tends to represent a particular reading of events

that implies the Supreme Court switched political and interpretive

positions intentionally and at least partially due to the threat of court

packing. Bruce Ackerman has endorsed this reading of the history.

More recently, Barry Cushman argued that there was no politically

motivated switch in time.

Cushman not only disputed the political

explanation but also offered a non-political alternative reading of

events. So many others have followed Cushman, that they may now be

fairly divided into two camps: those like Ackerman, who saw the switch

as motivated by external, political factors, and those, like Cushman,

who gave internal, non-political explanations for the switch.

For the purposes of this Article, a more important part of the

history is the report of the Senate Judiciary Committee, which

represented the views of both parties and sharply criticized the court

packing plan. The report described court packing as designed “to

Leuchtenburg, supra note 18, at 673.

For a brief review of many of the accounts of the court packing attempt of 1937, see Daniel

E. Ho & Kevin M. Quinn, Did a Switch in Time Save Nine?, 2 J. LEGAL ANALYSIS 69, 71 (2010).

See ACKERMAN, supra note 16, at 49, 119.

BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A

CONSTITUTIONAL REVOLUTION (1998) (arguing there was no sudden reversal caused by external

pressures such as court packing); see also Barry Cushman, Rethinking the New Deal Court, 80

VA. L. REV. 201 (1994).

Ho & Quinn, supra note 38, at 71 (dividing the two camps of historians into “internalists”

and “externalists”). Ho and Quinn created an empirical study of the historical moment, coming

down not entirely squarely on either side, but not supporting the focus on the external force of

the court packing plan. Ho and Quinn advised, “For internalists, the explanation as to differences

in cases and litigating strategies must correspond to the abrupt temporary shift we identify.

Unless the cases in the 1936 term themselves are sharply different, they cannot be reconciled with

this evidence.” Id. at 102–03. Similarly, they concluded, “For externalists, our account seems most

consistent with the focus on the 1936 landslide election, thereby rebutting naive accounts that

Roberts’s vote in Parrish was a direct result of the court-packing plan.” Id. at 103.

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2787

punish the Justices” for their decisions.

The plan was, therefore, “an

invasion of judicial power,” an encroachment on judicial

independence.

The report found that court packing required a

“dangerous abandonment of constitutional principle.”

This report

points towards two of the most common arguments against court

packing: interference with judicial independence and the existence of a

constitutional norm against court packing.

B. Court Packing and Legitimacy of the Supreme Court

The Supreme Court is famously known as the least dangerous

branch. One reason for this assertion is the Court’s lack of recourse if

citizens do not respect the decisions of the Court. It has neither “purse

nor sword.” The ability of the Court to function effectively depends on

the popular acceptance of the Court’s legitimacy.

Legitimacy, in part, stems from the Court’s special relationship to

the Constitution. “The very idea of a Constitution turns on the

separation of the legal and the political realms.”

This idea of a higher,

constitutional law and an ordinary and more political law, was

prevalent at the time of drafting.

The Supreme Court, as interpreter of

the Constitution, assumed the role of maintaining this division and,

theoretically, remaining above politics. Legitimacy is at risk when the

public no longer has faith in this division.

Consider Posner and Sunstein’s account of institutional flip-flops:

An institutional flip-flop is a reversal of one’s position on an

institutional value based on partisan or political interests or

Leuchtenburg, supra note 18, at 675 (quoting REORGANIZATION OF THE FEDERAL

JUDICIARY, S. REP. NO. 75-711 (1937)).

Id.

This Article follows Epps and Sitaraman in adopting Richard Fallon’s sociological meaning

of the term legitimacy, which “involves prevailing public attitudes toward governments,

institutions, or decisions.” Epps & Sitaraman, supra note 7, at 151 n.4 (citing RICHARD H.

FALLON, JR., LAW AND LEGITIMACY IN THE SUPREME COURT 21 (2018)).

Kathleen M. Sullivan, Constitutional Constancy: Why Congress Should Cure Itself of

Amendment Fever, 17 CARDOZO L. REV. 691, 695 (1996). This division, Sullivan argues, is the

reason why we should be cautious of constitutional amendment: “Frequent constitutional

amendment can be expected to undermine this respect by breaking down the boundary between

law and politics. The more you amend the Constitution, the more it seems like ordinary

legislation. And the more the Constitution is cluttered up with specific regulatory directives, the

less it looks like a fundamental charter of government. Picture the Ten Commandments with a

few parking regulations thrown in.” Id. at 696.

Philip A. Hamburger, The Constitution’s Accommodation of Social Change, 88 MICH. L.

REV. 239, 275 (1989).

2788 CARDOZO LAW REVIEW [Vol. 42:7

substantive commitments. Here is a way of specifying the idea:

People flip-flop when (1) at two distinct points in time they take

different positions on the validity of a claim of institutional authority

for a set of policy decisions, and (2) there are no relevant differences

that would justify the shift.

Posner and Sunstein regard the Supreme Court as not at all

immune from flip-flops, concluding that “[w]ithin the Supreme Court,

it is also easy to find at least apparent flip-flops.”

Flip-flops are, to a certain degree, both normal and to be expected.

Within the Supreme Court, the risk comes from what Posner and

Sunstein would describe as tactical flip-flops.

Posner and Sunstein give

this example of a tactical flip-flop:

Recall that when Republicans hold a majority of the seats in the

Senate, many of them decry the use of the filibuster by the

Democratic minority, claiming that it is antidemocratic; but when

Republicans are in the minority, many of them claim that the

filibuster is sanctioned by the Senate’s traditions.

The problem is that an “apparently principled argument (about

checks and balances or the need to break a logjam)” is applied

situationally and inconsistently, and “in the interest of a substantive

goal, which is all that they really care about.”

Posner and Sunstein

recognize that “[t]actical flip-flops are ubiquitous in politics,” but we

expect more of the courts.

If we expect tactical flip-flops of the Court,

then the Court lacks legitimacy, because it is issuing decisions that are

not based on principled reasoning and reliance to law, but instead

opportunistically taking advantage of those to reach a political end.

Some scholars believe this is exactly what happens on the Supreme

Court: Justices select legal norms in service to personal political

beliefs.

This depletes the public belief in legitimacy of the Court.

In terms of legitimacy and court packing, the weakness of the

legitimacy argument lies in the assumption that the Court has a high

level of legitimacy. Evidence suggests otherwise currently. Why is the

timing of a judicial nomination so important? Because we all feel sure

Eric A. Posner & Cass R. Sunstein, Institutional Flip-Flops, 94 TEX. L. REV. 485, 493 (2016).

Id. at 500.

Id. at 511.

Id.

Id. at 512.

Id. at 511.

See JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL

MODEL REVISITED 80 (2002) (“[J]udges may pick and choose among precedents to find those

that accord with their policy preferences, while simultaneously asserting that these are also the

ones that best accord with the facts of the case at hand.”).

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2789

of how the nominee will vote on key issues. That is, it is politics, not

law. What is so unseemly about court packing? It means the Supreme

Court is a deeply political institution. Having the public and Congress

in a battle over the timing of a judicial nominee means exactly the same

thing. In other words, it is a bit late now: The emperor has already lost

his clothes. On our current trajectory, “it will become impossible to

regard the [C]ourt as anything but a partisan institution.”

The problem of legitimacy has become critical: “[I]t is striking how

many commentators—including prominent constitutional scholars, a

former Attorney General, and current members of Congress—have

recently questioned the legitimacy of the United States Supreme Court.

Indeed, some critics suggest that the situation is so bad as to warrant

extreme measures . . . .”

This critical low of legitimacy definitely

undermines the argument against court packing.

To understand the current crisis of legitimacy, it is important to

look to the recent history of the nominations process. But first, to set a

baseline, consider how the process looked in retrospect after

Rehnquist’s nomination in the late 1980s. William Ross felt he could

accurately describe the hearings as “turbulent.”

Ross described the

Senate as deviating from “its customary practice of confirming the

president’s nominee by an overwhelming vote,” and instead approving

“Rehnquist by the comparatively narrow vote of sixty-five to thirty-

three, the thinnest margin any successful nominee has received since

1912.”

Ross even felt the need to caution scholars that “[t]he Senate’s

careful and prolonged consideration of the Rehnquist nomination is a

reminder that the Senate is not merely a rubber stamp for the

president’s nomination, even though the president’s choice rarely

encounters serious opposition.”

We do not live in the world Ross described, not even close. In three

decades, we have shifted to a highly confrontational and politicized

appointments process.

If Rehnquist’s hearings signaled a departure

Lee Epstein & Eric Posner, Opinion, If the Supreme Court Is Nakedly Political, Can It Be

Just?, N.Y. TIMES (July 9, 2018), https://www.nytimes.com/2018/07/09/opinion/supreme-court-

nominee-trump.html [https://perma.cc/V52W-3HHU].

Tara Leigh Grove, The Supreme Court’s Legitimacy Dilemma, 132. HARV. L. REV. 2240,

2240–41 (2019) (reviewing RICHARD H. FALLON, JR., LAW AND LEGITIMACY IN THE SUPREME

COURT (2018)).

William G. Ross, The Functions, Roles, and Duties of the Senate in the Supreme Court

Appointment Process, 28 WM. & MARY L. REV. 633, 633 (1987).

Id.

For a more detailed account of the politicization of the appointments process, see David

R. Stras, Understanding the New Politics of Judicial Appointments, 86 TEX. L. REV. 1033 (2008)

2790 CARDOZO LAW REVIEW [Vol. 42:7

from the traditional process, the Bork hearings finalized it. As

Ackerman wrote just afterwards, the Senate did not “preserve[ ] the

proceeding’s deliberative character.”

Bork had great qualifications, but

the Senate was uninterested. Bork symbolized political change.

Ackerman concluded, “Thus the scene had already been set for tragedy:

if the Senate and the country decided that President Reagan should not

be granted Roosevelt-like authority, they could express this judgment

only by rejecting a nominee who, by normal criteria, was superbly

qualified for the office.”

From this point forward, qualifications would

no longer be a defining question for the advice and consent process and

politics became the focus: “The shadow of the failed 1987 nomination

of Robert Bork has loomed over the judicial appointments process, and

the recent vacancies were widely expected to produce a large-scale

confirmation battle, with the prospect of nominees being defeated as

Bork was.”

The Bush era solidified the new political nature of the

appointments process, when Democrats followed the pattern

Republicans had established in the Reagan era. Democrats successfully

filibustered six Bush nominees and ignored Republican frustration.

Scholars did not help with their advice to senators to focus on

substantive, political views rather than qualifications.

Merrick Garland’s nomination process was one step worse. The

Senate would not even look at his qualifications. When Justice Scalia

died, that very day, Senator Mitch McConnell, Republican Majority

Leader, announced a moratorium on considering nominees that would

last until the next President took office.

This move only heightened

the political nature of the appointments process. The candidates

immediately focused on substantive views of potential nominees:

(reviewing BENJAMIN WITTES, CONFIRMATION WARS: PRESERVING INDEPENDENT COURTS IN

ANGRY TIMES (2006); JAN CRAWFORD GREENBURG, SUPREME CONFLICT: THE INSIDE STORY OF

THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT (2007)).

Bruce A. Ackerman, Essays on the Supreme Court Appointment Process: Transformative

Appointments, 101 HARV. L. REV. 1164, 1164 (1988).

Id. at 1169.

Keith E. Whittington, Presidents, Senates, and Failed Supreme Court Nominations, 2006

SUP. CT. REV. 401, 401.

See Laura T. Gorjanc, The Solution to the Filibuster Problem: Putting the Advice Back in

Advice and Consent, 54 CASE W. RES. L. REV. 1435, 1435 (2004) (discussing the history of the

nominations and the flippant responses of Democrats to the Republican outcry).

Whittington, supra note 63, at 401–02 (describing Tribe’s and Sunstein’s advice to

senators).

Evan Osnos, The Death of Antonin Scalia, NEW YORKER (Feb. 13, 2016),

https://www.newyorker.com/news/news-desk/the-death-of-antonin-scalia [https://perma.cc/

ZBQ7-Z6W6].

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2791

During the 2016 election, former President Donald Trump

publicly vowed to “appoint [J]ustices to the United States Supreme

Court who [would] uphold our laws and our Constitution,” stated that

“Second Amendment people” could stop Hillary Clinton’s Supreme

Court picks, and released a list of Justices whom he purportedly planned

to consider nominating to the Court’s bench.

On the other hand,

then-Democratic nominee Hillary Clinton declared that she would

nominate only Justices who were willing to overturn the Court’s

controversial Citizens United decision regarding corporate campaign

contributions, criticized the Court’s precedent regarding the Second

Amendment, and denounced Trump’s list of prospective nominees as

littered with “extreme ideologues.”

Most recently, Kavanaugh’s confirmation vote was one of the

closest yet, with only two votes to spare.

Moreover, “Justice

Kavanaugh gave testimony to the Senate Judiciary Committee that

many viewed as ‘nakedly partisan.’”

The culmination of this history is unfortunate: “For a variety of

structural, external, and judicial reasons, however, the politics of federal

judicial appointments have fundamentally changed in the last eighty

years, especially since the 1980s. Today, for the Supreme Court and

United States circuit courts of appeals, the appointments process is

high-stakes, explosively partisan, and often nasty.”

When President Obama nominated Garland, he warned that a

failure to consider the nominee by the Senate would indicate that the

process was broken “beyond repair.”

That now represents the

consensus among scholars, as well as many members of the Senate who

have described the process as: a “mess,” “abysmal,” “broken,” “going in

the wrong direction,” and downright “disorderly, contentious, and

unpredictable.”

Looking at the criticisms, scholars concluded “there

does seem to be general agreement that politics, philosophy, and

Benjamin Pomerance, Justices Denied: The Peculiar History of Rejected United States

Supreme Court Nominees, 80 ALB. L. REV. 627, 627–28 (2017).

Id.

Epps & Sitaraman, supra note 7, at 150.

Id.

David R. Stras & Ryan W. Scott, Navigating the New Politics of Judicial Appointments, 102

NW. U. L. REV. 1869, 1871 (2008) (reviewing CHRISTOPHER L. EISGRUBER, THE NEXT JUSTICE:

REPAIRING THE SUPREME COURT APPOINTMENTS PROCESS (2007)).

Adam Liptak & Sheryl Gay Stolberg, Shadow of Merrick Garland Hangs over the next

Supreme Court Fight, N.Y. T

IMES (Sept. 19, 2020), https://www.nytimes.com/2020/09/19/us/

ginsburg-vacancy-garland.html [https://perma.cc/CM7N-8SX3].

Lee Epstein, Jeffrey A. Segal, Nancy Staudi, & René Lindstadt, The Role of Qualifications

in the Confirmation of Nominees to the U.S. Supreme Court, 32 FLA. ST. U. L. REV. 1145, 1146

(2005).

2792 CARDOZO LAW REVIEW [Vol. 42:7

ideology now dominate a process that should emphasize ethics,

integrity, and competence.”

The history is not pretty, and, more

bluntly, it lacks integrity. Unsurprisingly, “[t]he predictable result is a

Supreme Court whose Justices—on both sides—are more likely to vote

along party lines than ever before in American history. . . . That

development presents a grave threat to the Court’s legitimacy . . . .”

A key indicator that legitimacy has become critical is the

prevalence of doing what I like to call Supreme Court math, or cocktail

party constitutional law. It is the bare guessing of the outcomes of cases,

based on the personal political leanings of Justices. For example:

If Justices Ginsburg, Kennedy, and Breyer all leave the bench during

President Trump’s term of office, President Trump will hold the

power of appointing a total of four Supreme Court Justices. No

President since Ronald Reagan has filled four or more vacancies on

this powerful bench. Yet the impact of the new slate of nominees

extends far beyond mere numbers. If the above-described scenario

comes true, President Trump would replace the Court’s

longstanding conservative leader (Scalia), the Court’s two more

influential liberal Justices (Ginsburg and Breyer), and—perhaps

most importantly—the swing voter on whom so many 5-4 decisions

in recent years have hinged (Kennedy). With such a slate of

nominees, the President could re-cast the Court’s overall

decisionmaking tendencies in a way that could reverberate for

decades to come. For example, if President Trump decides to appoint

reliably conservative Justices to fill all four roles, it would give the

Court a substantial conservative majority, with the four new

conservatives joining Justice Clarence Thomas, Justice Samuel Alito,

and Chief Justice John Roberts to reach a 7-2 conservative advantage.

Conversely, if President Trump appointed four Justices who

unexpectedly turned out to be reliably liberal voters, it would

establish a definite liberal majority on the Court, with the four new

jurists joining Justice Sonia Sotomayor and Justice Elena Kagan to

form a 6-3 liberal lead.

When the outcomes of cases can be accurately predicted this way

by counting Justices as either reliably conservative or liberal, then the

distinction between politics and higher law is lost, and the Court can be

fairly described as experiencing a crisis of legitimacy. Predicting

Supreme Court jurisprudence should not sound like debating the

baseball playoffs.

Id.

Epps & Sitaraman, supra note 7, at 150–51.

Pomerance, supra note 67, at 631.

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2793

The question of whether this type of math works to accurately

predict cases—and particularly in lieu of precedent—has long been

debated.

For our current purposes, however, the winner of this debate

is irrelevant. The question is whether people believe that case outcomes

can be predicted by this simple, party-based math.

The lack of faith in Justices applying law over politics shines even

more in the context of recusal or disqualification. Scalia once prompted

outrage because he “declined to disqualify himself from hearing a case

in which Vice President Dick Cheney was a named party, after flying

with the Vice President on a government jet to Louisiana for a weekend

of duck hunting, while the appeal was pending.”

Similar and even

worse incidents have peppered the state supreme courts in recent

years.

If concerns for the legitimacy of the Court have been a primary

reason to oppose court packing, it would be hard to say that they exist

now as they did in 1937. A lack of legitimacy does not necessarily mean

we can ignore a threat to it; indeed, possibly we should consider such a

threat all the more cautiously if there is little capital left. But it is also

possible to see court packing as a part of the solution,

and it is one that

has been adopted by a number of Democrats.

For a review of this debate and examination of its two sides, see Michael J. Gerhardt, The

Limited Path Dependency of Precedent, 7 U. PA. J. CONST. L. 903, 905 (2005). In brief, Gerhardt

separates the debates into two sides. The social scientists “conceive[ ] of precedent—understood

as prior judgments or rulings of the Supreme Court as sources of authority for its decisions—as

having very weak influence, if any at all, in constitutional adjudication.” Id. Legal scholars refuse

this evidence, “conceiv[ing] of precedent as having sufficient force to constrain the Supreme

Court.” Id.

Charles Gardner Geyh, Why Judicial Disqualification Matters. Again., 30 REV. LITIG. 671,

673–74 (2011).

Famously, West Virginia Justice Brent Benjamin refused to recuse himself due to his

relationship with Massey Energy company’s CEO. Later, the Supreme Court ruled that Benjamin

should have recused himself. Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009). More

recently in West Virginia, Justice Evan Jenkins refused to recuse himself, creating a public

backlash. See Ken Ward, Jr., Jenkins Declines to Step Aside from Natural Gas Case, CHARLESTON

GAZETTE-MAIL (Oct. 10, 2018), https://www.wvgazettemail.com/news/wv_troubled_transition/

jenkins-declines-to-step-aside-from-natural-gas-case/article_2360e8b7-9535-5f65-8f0e-

e5a765f32ac0.html [https://perma.cc/477D-5CPM]. A similar incident occurred in Illinois: “[A]

newly elected Illinois Supreme Court justice provoked media ire after he declined to disqualify

himself from hearing a case in which a corporate defendant and its employees had made

significant contributions to his election campaign while the appeal was pending. In 2005, that

same justice cast the deciding vote in the defendant’s favor.” Geyh, supra note 78, at 673.

See Epps & Sitaraman, supra note 7 (suggesting increasing the number of Justices as a part

of one solution to the current Supreme Court crisis).

2794 CARDOZO LAW REVIEW [Vol. 42:7

Kamala Harris’s justification for court packing lies precisely on the

idea of remedying the lack of public faith in the Court.

Harris

explained that she was open to the idea of court packing precisely

because “[w]e are on the verge of a crisis of confidence in the Supreme

Court.”

She is not alone in that perspective: “The Court’s legitimacy

will be questioned in the coming years—perhaps as never before.

Indeed, even those who think the threat might be overblown still believe

that coming challenges to the Court need to be taken seriously.”

The crisis of legitimacy may derive in part from the overall political

dynamic of hyper-polarization that has developed,

but the Supreme

Court may be at the nexus. Kavanaugh’s confirmation process “deeply

divided the country,” but was only a part of a trend of “an increasingly

politicized fight over Justices.”

Supreme Court legitimacy is called into

question,

because we have “a Supreme Court whose Justices—on both

sides—are more likely to vote along party lines than ever before in

American history.”

C. Court Packing and Judicial Independence

Judicial independence is another mechanism for ensuring the

Court is insulated from political pressures—in this case external ones.

“[J]udicial independence is essential, because it insulates judges from

external interference with their impartial judgment that could corrupt

See Quinta Jurecic & Susan Hennessey, The Reckless Race to Confirm Amy Coney Barrett

Justifies Court Packing, A

TLANTIC (Oct. 4, 2020), https://www.theatlantic.com/ideas/archive/

2020/10/skeptic-case-court-packing/616607 [https://perma.cc/E5MR-8QFM] (developing an

argument for adding Justices to restore legitimacy to the Court); see also Ramesh Ponnuru, Biden

and Harris Should Just Be Honest About Court-Packing, B

LOOMBERG (Oct. 7, 2020, 10:00 AM),

https://www.bloomberg.com/opinion/articles/2020-10-07/biden-harris-should-be-honest-

about-court-packing [https://perma.cc/9SSB-GFG5] (critiquing the Jurecic and Hennessey

argument). Ponnuru attributes the argument to Jurecic and Hennessey, but it already was made

by both Elizabeth Warren and Kamala Harris. See Herndon & Astor, supra note 10; Everett &

Levine, supra note 9.

Everett & Levine, supra note 9.

Epps & Sitaraman, supra note 7, at 165–66.

See Josh Chafetz & David E. Pozen, How Constitutional Norms Break Down, 65 UCLA L.

REV. 1430, 1432 (2018) (“From the moment Donald Trump was elected president, critics have

anguished over a breakdown in constitutional norms.”).

Epps & Sitaraman, supra note 7, at 150.

Epstein & Posner, supra note 55. But see Robert Barnes, Polls Show Trust in Supreme Court,

but There Is Growing Interest in Fixed Terms and Other Changes, WASH. POST (Oct. 24, 2019),

https://www.washingtonpost.com/politics/courts_law/polls-show-trust-in-supreme-court-but-

there-is-growing-interest-in-fixed-terms-and-other-changes/2019/10/24/dcbbcba4-f64c-11e9-

8cf0-4cc99f74d127_story.html [https://perma.cc/ZN32-AYHH].

Epps & Sitaraman, supra note 7, at 150.

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2795

the rule of law.”

Judicial independence is a crucial norm for the rule

of law across the world: “[T]he Constitution Project declares that

‘judges are supposed to be responsive only to the rule of law and the

Constitution, not to majority will or public, political, or media

pressure . . . .’”

Protecting judicial independence means preventing

other institutions—from parties to branches—from directly interfering

with the judgment of the Justices, either individually or as a group.

Congress has opportunities to impact the Court through such

mechanisms as impeachment or changes in the Court’s jurisdiction. But

more informally, Congress can “hurt the Court by refusing to raise

judicial salaries to keep up with inflation, by ignoring the Chief Justice’s

administrative and personnel requests, and by overloading the judiciary

with too many cases.”

All of these mechanisms provide Congress with

opportunities to infringe upon the Court’s judicial independence.

From the beginning, a loss of judicial independence was one of the

key arguments made against court packing.

In one crucial way the current situation differs from the 1937

attempt at court packing: In 1937 what Roosevelt needed was a change

in jurisprudence. There were specific decisions that Roosevelt wanted

overturned because those decisions impeded his New Deal plan for a

federally based financial recovery from the Great Depression. The

desire to reverse those decisions specifically was never a secret.

Roosevelt acknowledged the intent directly, and Senate testimony

confirmed.

I believe that in the current situation, court packing is not about

changing a particular decision or set of decisions from the Supreme

Court. Instead, the desire stems from an understanding of the political

makeup of the Court itself. The ability to do Supreme Court math

accurately is again the problem. Both Congress and the public seem to

believe that they will be able to accurately predict how Justices will

decide cases based on political parties. In that way, it is the loss of

legitimacy that is truly at issue, not a loss of judicial independence. Nor

is the challenge to the Court’s independence the same when packing

would not be retributive for a particular decision, but instead a more

generalized desire to ensure the political balance of the Court.

Geyh, supra note 33, at 217–18.

Id. (quoting The Newsroom Guide to Judicial Independence, CONST. PROJECT (2006),

https://archive.constitutionproject.org/pdf/37.pdf [https://perma.cc/E2LG-B9J2]).

Eskridge & Frickey, supra note 35, at 40 n.52 (citing Robert D. Tollison, Public Choice and

Legislation, 74 VA. L. REV. 339, 345–47 (1988)).

Friedman, supra note 32, at 1038.

2796 CARDOZO LAW REVIEW [Vol. 42:7

D. Court Packing as Against Constitutional Norms

Constitutionality is not a strong argument against court packing.

Recently, scholars have regularly concluded that changing the number

of Justices is constitutionally acceptable.

Historically, the idea of

constitutionality was more intertwined with the idea that not changing

the size of the Court was an inviolable constitutional norm. Raymond

Moley testified before the Senate, stating that “that there was now a

‘custom of the Constitution’ against Court-packing, which he

contended was ‘as binding upon public officials as a written provision

of the Constitution itself.’”

Similarly, Erwin Griswold testified both

that it was possible court packing was unconstitutional and that “not all

things that are constitutional are things that should be done.”

The norm certainly has been strong in American constitutional

culture.

In 2018, Tara Leigh Grove wrote about the crystallization of

conventions into legal rules and used court packing as an example of

why “such crystallization is not necessary.”

She explained, “There can

be a strong convention against a court-curbing measure, even if the

legal community thinks the measure would be ‘legal.’”

She concluded

the example with a strong statement of how court packing would never

now be considered.

Yet, now we know that court packing is not far

from consideration by reasonable minds. A norm is culture, and culture

changes.

The norm against court packing may have existed, in part, due to

the fact that court packing didn’t succeed in 1937 and has not been

utilized since then. Josh Chafetz argued,

Michael C. Dorf, How the Written Constitution Crowds out the Extraconstitutional Rule of

Recognition, in THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION, 69, 74 (Matthew D.

Adler & Kenneth Einar Himma eds. 2009) (concluding that “we have excellent textual and

historical reasons to think that the Constitution poses no obstacle . . . .”); see also Grove, supra

note 2, at 541.

Bradley & Siegel, supra note 31, at 280 (quoting Reorganization of the Fed. Judiciary:

Hearings Before the Comm. on the Judiciary, 75th Cong. 546 (1937) (statement of Raymond

Moley)).

Id. (quoting Reorganization of the Fed. Judiciary: Hearings Before the Comm. on the

Judiciary, 75th Cong. 767 (1937) (statement of Erwin Griswold)).

This is true to the degree that court packing can essentially be used as an insult. Thus, Barry

Friedman could write that something “smacks of Court-packing” with scholars understanding

his critique. Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The

Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 430 (1998).

Grove, supra note 2, at 541.

Id.

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2797

The claim that some behavior is unprecedented carries with it a

distinct whiff of impermissibility: if it’s never been done before, then

at the very least the burden is on those who would want to do it to

show that it is permissible. A thumb is very firmly placed on the scale

against constitutional novelty.

In the current climate, a primary challenge to the norm reaches

precisely to Chafetz’s point: it may not be novel. Some commentators

have reduced the Democratic reliance on the Garland nomination

refusal to a revenge-like quest of tit-for-tat. But the recent history

matters in light of Chafetz’s point. If a filibuster or a declared

moratorium on appointment hearings accomplishes the same

purpose—changing the size of the Supreme Court—then novelty is no

longer as viable an argument.

Overall, the arguments against court packing cannot reasonably be

evaluated now on the same terms as they were in 1937. The Supreme

Court and the appointments process have become highly politicized,

diminishing the public understanding of their legitimacy. For some of

the same reasons, we doubt the existence of judicial independence, at

least on the Supreme Court. We might be willing to venture further

afield to locate a solution, or senators and presidential candidates would

not be discussing court packing. To some degree, all of the original

arguments against court packing have lost their shine. There is,

however, another reason to forego court packing, and that reason is

based on our history of formal and informal constitutional change and

the effectiveness of those changes.

III. M

AKING EFFECTIVE CONSTITUTIONAL CHANGE

This Part examines the formal constitutional amendment

procedure under Article V and evaluates its current availability as a

mechanism for change. After concluding that the potential for formal

amendment is limited, this Part examines the evidence that informal

constitutional change happens and summarizes the scholarship on the

methods and legitimacy of informal change. Finally, I consider

examples used to support informal constitutional change and evaluate

the long-term effectiveness of rights-based and structural changes.

Using this evidence, I examine how and whether court packing could

be used to achieve informal constitutional change.

Josh Chafetz, The Supreme Court, 2016 Term: Unprecedented? Judicial Confirmation

Battles and the Search for a Usable Past, 131 HARV. L. REV. 96, 96 (2017).

2798 CARDOZO LAW REVIEW [Vol. 42:7

A. The Failure Formal Amendment

“Nothing new can be put into the Constitution except through the

amendatory process. Nothing old can be taken out without the same

process.”

100

The framers debated proper mechanisms for constitutional

change, including forcing change on a regular basis,

101

and settled on

Article V as the explicit formal method for constitutional change. The

framers regularly expressed fear of majoritarian politics, including

regular movements to amend the Constitution. Adapting a stable,

relatively permanent mechanism for formal amendment may have been

an attempt to codify science over impulse.

102

Such a process reinforces

the distinction between a higher constitutional law and everyday

politics.

103

The Article V process is onerous.

104

Compared to other

constitutions around the world, the U.S. Constitution is one of the

hardest to amend in terms of the mechanics required.

105

Empirically

100

Ullmann v. United States, 350 U.S. 422, 428 (1956).

101

Hamburger, supra note 47, at 300–01 (discussing the positions of framers, including

Jefferson who wanted a sunset provision on the constitution as well as ordinary laws).

102

Kahn argued, “The movement from the Declaration of Independence to the Constitution,

however, was one of increasing realization of the need for a science to inform this right of political

experimentation. The people may have ‘an inherent right . . . to alter or abolish,’ but without

political science, what ‘to them shall seem most likely to effect their safety and happiness’ is not

likely to do so in practice.” Paul W. Kahn, Reason and Will in the Origins of American

Constitutionalism, 98 YALE L.J. 449, 453–54 (1989). George Washington’s farewell address

affirmed this perspective: “If in the opinion of the people the distribution or modification of the

constitutional powers be in any particular wrong, let it be corrected by an amendment in the way

which the Constitution designates. But let there be no change by usurpation; for though this in

one instance may be the instrument of good, it is the customary weapon by which free

governments are destroyed.” Elizabeth C. Price, Constitutional Fidelity and the Commerce

Clause: A Reply to Professor Ackerman, 48 SYRACUSE L. REV. 139, 140 n.1 (1998) (quoting

Washington’s speech).

103

Bruce Ackerman explains, “[A]ll the time and effort required to push an initiative down

the higher law-making track would be wasted unless the Constitution prevented future normal

politicians from enacting statutes that ignored the movement’s higher law achievement.” BRUCE

ACKERMAN, WE THE PEOPLE: FOUNDATIONS 9 (1993 ed.).

104

See Kathleen M. Sullivan, Constitutional Constancy: Why Congress Should Cure Itself of

Amendment Fever, 17 CARDOZO L. REV. 691, 692 (1996) (explaining the mechanisms and

concluding that “[o]ur Constitution is extraordinarily difficult to amend”). Notably, the process

does not seem to be entirely clear in terms of the mechanics. See Michael Stokes Paulsen, A

General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103

YALE L.J. 677, 681 (1993) (describing the lack of clarity in the amendment process).

105

DONALD S. LUTZ, PRINCIPLES OF CONSTITUTIONAL DESIGN 171 (2006); see also Lawrence

G. Sager, The Incorrigible Constitution, 65 N.Y.U. L. REV. 893, 895 (1990) (“An important part of

what makes the Constitution so conceptually awkward is its literal incorrigibility: the

Constitution is markedly obdurate to textual change.”).

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2799

speaking, the amendment process has rarely succeeded.

106

Still,

amendment occurred with some regularity in the earlier years.

Like the Supreme Court appointments process, the Article V

amendment process has changed drastically. Our most recent successful

attempt at amendment took 202 years, culminating in ratification by a

state that did not exist when the amendment was proposed.

107

Within

living memory, we seem incapable of federal constitutional change. This

is despite the fact that the states manage the feat regularly.

108

Despite the

framers’ attempts to create an effective and enduring amendment

process,

109

scholars agree that the Article V process has become non-

viable.

110

B. Accounts of Informal Constitutional Change

In the absence of a functioning formal amendment process,

scholars have focused on how constitutional law changed

106

Donald J. Boudreaux & A.C. Pritchard, Rewriting the Constitution: An Economic Analysis

of the Constitutional Amendment Process, 62 FORDHAM L. REV. 111, 112-113 (1993) (“Since the

adoption of the Constitution in 1789, only twenty-seven amendments have been enacted out of

the more than 10,000 proposed in Congress.”).

107

See Paulsen, supra note 104, at 679 (discussing Michigan’s ratification of the Twenty-

Seventh Amendment).

108

See JOHN DINAN, STATE CONSTITUTIONAL POLITICS: GOVERNING BY AMENDMENT IN THE

AMERICAN STATES 1–8 (2018) (explaining that states use of formal amendment both regularly

and effectively); John Dinan, State Constitutional Amendments and American Constitutionalism,

41 O

KLA. CITY U. L. REV. 27 (2016) (describing formal amendment as the primary method of

state constitutional change); see also Jonathan L. Marshfield, Courts and Informal Constitutional

Change in the States, 51 NEW ENG. L. REV. 453, 456–58 (2017) (arguing that informal

constitutional change is presumed to happen less in the states because of lower barriers to the

formal amendment process). Notably, there is evidence that the states consciously adopted lower

barriers to amendment in an effort to restrain judicial activism. See Jonathan L. Marshfield, The

Amendment Effect, 98 B.U.L. Rev. 55, 59 (2018) (“Records from early-twentieth-century state

constitutional conventions in the United States show that several states made their amendment

procedures more flexible based on the assumption that this would restrain judges.”).

109

See Boudreaux & Pritchard, supra note 106, at 112–13 (explaining that the Article V

process was specifically created to be less burdensome than the alternative under the Articles of

Confederation).

110

See SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE

CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006) (examining

Article V’s limitations and arguing for a new constitutional convention); Serena Mayeri, A New

E.R.A. or a New Era? Amendment Advocacy and the Reconstitution of Feminism, 103 NW. U. L.

REV. 1223, 1291 (2009) (noting agreement that after the Equal Rights Amendment the Article V

“process was no longer a viable path to constitutional change, except perhaps for very specific,

technical alterations”); Richard Albert, Constitutional Disuse or Desuetude: The Case of Article

V, 94 B.U. L. Rev. 1029 (discussing Article V’s decline and unavailability).

2800 CARDOZO LAW REVIEW [Vol. 42:7

nevertheless.

111

Heather Gerken wrote, “Anyone who was awake in law

school is aware that constitutional meaning has evolved over time even

as the text has not.”

112

Although scholars debate both the pathways and

the legitimacy of informal or extra-textual amendment, she concludes,

“I take it that no one doubts that it has done so.”

113

Thurgood Marshall

similarly saw opportunities for informal change:

I do not believe that the meaning of the Constitution was forever

“fixed” at the Philadelphia Convention. Nor do I find the wisdom,

foresight, and sense of justice exhibited by the framers particularly

profound. To the contrary, the government they devised was

defective from the start, requiring several amendments, a civil war,

and momentous social transformation to attain the system of

constitutional government, and its respect for the individual

freedoms and human rights, that we hold as fundamental today.

When contemporary Americans cite “The Constitution,” they

invoke a concept that is vastly different from what the framers barely

began to construct two centuries ago.

114

Some norms seem to be effectively entrenched such that they

exceed everyday politics. David Strauss concluded, “There are settled

principles of constitutional law that are difficult to square with the

language of the document, and many other settled principles that are

plainly inconsistent with the original understandings.”

115

Strauss

argued, “[W]hen people interpret the Constitution, they rely not just on

the text but also on the elaborate body of law that has developed, mostly

through judicial decisions, over the years.”

116

He discounted the role of

111

For an introduction to these issues, see generally 1 BRUCE ACKERMAN, WE THE PEOPLE:

FOUNDATIONS (1991); Morton J. Horowitz, The Constitution of Change: Legal Fundamentality

Without Fundamentalism, 107 H

ARV. L. REV. 32 (1993); RESPONDING TO IMPERFECTION: THE

THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995);

Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47

STAN. L. REV. 395

(1995); David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARV. L. REV. 1457,

1465 (2001).

112

Heather Gerken, The Hydraulics of Constitutional Reform: A Skeptical Response to Our

Undemocratic Constitution, 55 DRAKE L. REV. 925, 929 (2007); see also Clifton McCleskey, Along

the Midway: Some Thoughts on Democratic Constitution-Amending, 66 MICH. L. REV. 1001, 1012

(1968) (“Every schoolboy knows that our Constitution is subject to change through informal

processes as well as through formal amendment.”).

113

Gerken, supra note 112; see also Barry Friedman & Scott B. Smith, The Sedimentary

Constitution, 147 U. PA. L. REV. 1, 4 (1998) (explaining the conflict between the idea of the “living

constitution” with originalism).

114

Thurgood Marshall, Reflections on the Bicentennial of the United States Constitution, 101

HARV. L. REV. 1, 2 (1987).

115

David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 877–

78 (1996).

116

Id.

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2801

the text in favor of extra-textual influences: “In fact, in the day-to-day

practice of constitutional interpretation, in the courts and in general

public discourse, the specific words of the text play at most a small role,

compared to evolving understandings of what the Constitution

requires.”

117

Later, David Strauss took a stronger position, not only

recognizing constitutional change outside of the formal amendment

process but also arguing that Article V is neither necessary nor

sufficient for constitutional change.

118

Arguably, the difficulty of amending formally via Article V created

the processes of change outside the text.

119

The shift to informal

constitutional change when Article V is unavailable is all the more

expected in a functioning republic if we accept that amendability is, in

fact, necessary for the basic legitimacy of the government. Walter

Dellinger made this point well decades ago: “An unamendable

constitution, adopted by a generation long since dead, could hardly be

viewed as a manifestation of the consent of the governed.”

120

The key debates about informal constitutional change focus on two

intertwined aspects: the mechanisms for those changes—including the

117

Id.

118

Strauss, supra note 111. For a critique of Strauss’s approach, see Brannon P. Denning &

John R. Vile, The Relevance of Constitutional Amendments: A Response to David Strauss, 77 TUL.

L. REV. 247, 248–49 (2002).

119

See Gerken, supra note 112, at 933 (“The simple point of my hydraulics argument is that

an informal amendment process exists because formal amendment is so difficult.”); Albert, supra

note 110, at 1062 (adopting Gerken’s argument that the formal pathway is blocked); see also

Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2121 (1996)

(“While the legalization of the Constitution made it enforceable, it also narrowed the scope of

constitutional law and opened the way for significant constitutional changes to occur through

ordinary political means.”); Richard Albert, Quasi-Constitutional Amendments, 65 BUFF. L. REV.

739, 742 (2017) (“[Q]uasi-constitutional amendments are the result of a self-conscious

circumvention of onerous rules of formal amendment in order to alter the operation of a set of

existing norms in the constitution . . . Where constitutional actors determine, correctly or not,

that the current political landscape would frustrate their plans for a constitutional amendment

to entrench new policy preferences, they resort instead to sub-constitutional means—for

instance, legislation or political practice—whose success requires less or perhaps even no cross-

party and inter-institutional coordination.”).

120

Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment

Process, 97 HARV. L. REV. 386, 386–87 (1983). Dellinger concluded, “Without a viable process for

changing the original governing norm, however, the Constitution would fail to provide a

sufficient underpinning for the legitimacy of government.” Id. at 387. Notably, Dellinger did not

make this argument in the context of recognizing informal change. Indeed, Dellinger worried

about exactly that problem: “If we are to agree on what the fundamental law is, we need to have

an amendment process that operates with a fair degree of certainty. Substantial doubt about

whether amendments had properly been adopted would be a matter of serious concern: it would

leave us without an agreed-upon text to serve as the basic reference point from which to assess

the legitimacy of government and its actions.” Id. But see ZACHARY ELKINS, TOM GINSBURG, &

JAMES MELTON, THE ENDURANCE OF NATIONAL CONSTITUTIONS 82 (2009) (“[B]elow some

threshold, flexibility should clearly enhance constitutional endurance . . . .”).

2802 CARDOZO LAW REVIEW [Vol. 42:7

interpretive approach which minimizes change—and the legitimacy of

such changes.

121

Those who focus on interpretation often argue against extra-

textual change, accounting for any shifts in terms of simply the vagaries

of judicial interpretation. To some degree, the interpretive position is a

reaction to those who have set forth accounts of legitimate extra-textual

change.

122

Some accounts of interpretation sharply discount extra-

textual change. One reason to do so is that sharp deviations through

judicial interpretation present a problem for a democratic republic,

123

particularly when the Court’s interpretations prompt change rather

than responding to popular demand.

124

Other accounts of interpretation recognize that a high level of

change might occur simply through interpretive shifts: the Constitution

“has been dramatically refurbished from time to time through the

judiciary’s interpretation of its provisions.”

125

Lawrence Lessig, for

example, accounted for constitutional change in an interpretive context,

but denied that such change “requires amendment.”

126

The

121

Heather Gerken, supra note 112; see also Strauss, supra note 115, at 878 (“An air of

illegitimacy surrounds any alleged departure from the text or the original understandings.”).

122

Responding to Ackerman and Akhil Reed Amar, who both outlined ideas of change

outside Article V, David Dow wrote, “My thesis is that the only way to amend the Constitution

is in accordance with the mechanism outlined in article V. My further claim is that the

mechanism outlined in article V is clear, exclusive, and that it means what it says. There are

simply no other ways to amend the Constitution.” David R. Dow, When Words Mean What We

Believe They Say: The Case of Article V, 76 IOWA L. REV. 1, 4 (1990).

123

See Sager, supra note 105, at 896–97 (“Judicial change by reinterpretation, of course, is

different than popular amendment of the Constitution for these purposes: it is much harder to

account for as a prominent feature of government in a nation which extols popular sovereignty.

Indeed, it is robust judicial interpretation of the Constitution which often is seen as the difficulty

in squaring our constitutional tradition with the precept of popular sovereignty.”).

124

Id. at 896 (“Moreover, much of the change in our constitutional tradition has been at the

hands of the judiciary and by no means in simple harmony with changes in popular sentiment

or judgment on the matters in question. Judicial interpretation of the Constitution at times has

preceded and been an active catalyst of widespread changes in social practice and commitment;

at times it has lagged rather badly behind such changes; and at times, while simply never

achieving general rapport with popular perspectives, it has still clung tenaciously to its

conclusions.”).

125

Id. at 896; see also Sanford Levinson, How Many Times Has the United States Constitution

Been Amended? (A) < 26; (B) 26; (C) 27; (D) > 27: Accounting for Constitutional Change, in

RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT

13, 33 (Sanford Levinson ed., 1995) (challenging the idea that there is an effective way to

distinguish between interpretation and amendment).

126

Lessig, supra note 111, at 400. Lessig explains, “It is this assumption that I challenge directly

in the account below. As I argue, we have long recognized cases where, in the face of changes in

context, the proper act of fidelity is a changed reading of the constitutional text—constitutional

change, that is, without constitutional amendment. As others have before, I will call this a

justification of translation . . . .” Id. (emphasis added). In a similar vein, Richard Albert has

outlined a theory of quasi-constitutional amendments. See Albert, supra note 119, at 742.

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2803

unavailability of formal amendment may, in fact, increase the likelihood

that Justices will engage in more flexible and inventive interpretation.

127

Many scholars move beyond simple interpretation to

acknowledging methods of constitutional change explicitly extra-

textual or outside of Article V. One of the foremost accounts of informal

constitutional change comes from Bruce Ackerman. Ackerman

articulated a history of a limited number of specific, intentional, and

political acts by the people involving extensive debate and conflict,

128

ultimately confirmed multiple branches of government that he views as

having created enduring constitutional change. Ackerman viewed these

changes as the product of “wrenching social crisis” that drove

Americans to “move beyond normal politics.”

129

According to

Ackerman, these changes are legitimate, so long as they occur within

the constitutional moments pattern he identifies.

130

In terms of the

process of amendment, Ackerman did not support this informal

process over Article V, instead saying that his theory is interpretive of

the history of constitutional change, rather than normative about the

methodology.

Ackerman’s account of informal constitutional change focuses, in

part, on the court packing threat of 1937. Ackerman concludes that “the

President and Congress left it to the Justices themselves to codify the

New Deal revolution in a series of transformative judicial opinions,

threatening to pack the Court unless it accepted this novel

127

See Marshfield, The Amendment Effect, supra note 108, at 56 (“Many Americans and

prominent scholars believe that Article: V’s arduous amendment procedures embolden the

Justices because they know that unpopular constitutional rulings are unlikely to be displaced by

responsive amendments. This is surely true to a degree. The Supreme Court has all but admitted

that it takes more liberty in overruling constitutional precedent because of Article: V’s rigidity.”).

Marshfield observes that it is “commonplace in constitutional scholarship to identify Article V’s

rigidity as a cause of the court’s relative activism.” Id. at 57.

128

Sustained debate is a key feature, although not a sufficient one for constitutional change in

other accounts as well. See Melissa Schwartzberg, Should Progressive Constitutionalism Embrace

Popular Constitutionalism?, 72 OHIO ST. L.J. 1295, 1308 (2011) (reflecting on sustained

deliberation within Eskridge and Freejohn’s model and the requirement more generally).

129

ACKERMAN, supra note 103.

130

See Ackerman, supra note 27, at 1056 (“Thus, when today’s lawyers invoke the name of

Lochner v. New York, they are dealing with a constitutional symbol with all the potency of a

formal amendment under Article V.”); see also Barry Cushman, Mr. Dooley and Mr. Gallup:

Public Opinion and Constitutional Change in the 1930s, 50 BUFF. L. REV. 7, 8 (2002) (“The

‘Roosevelt revolution,’ he maintains, should ‘be viewed as a constitutive act of popular

sovereignty that legitimately changed the preceding Republican Constitution.’ For Ackerman,

‘the language of popular sovereignty provides an appropriate description for the constitutional

transformations achieved during this period.’ Constitutional lawyers should therefore ‘recognize

that Americans of this era hammered new fundamental commitments which we today have a

constitutional obligation to honor.’” (quoting 2 BRUCE ACKERMAN, WE THE PEOPLE:

TRANSFORMATIONS 280 (1998)).

2804 CARDOZO LAW REVIEW [Vol. 42:7

constitutional responsibility.”

131

Ackerman’s account suggests that the

Supreme Court intentionally switched positions for the sake of its

continued institutional legitimacy. As a result, the court accepts the

“unchallengeable constitutional reality” of “an activist, regulatory

state.”

132

Ackerman’s account of informal constitutional change now

competes with a number of other well-known accounts. Mark Tushnet

explained constitutional change in terms of workarounds,

133

which may

be considered more like the interpretive position in that these

workarounds express fidelity to at least some part of the textual

Constitution.

134

Tushnet’s workarounds “arise (a) when there is

significant political pressure to accomplish some goal, but (b) some

parts of the Constitution’s text seem fairly clear in prohibiting people

from reaching that goal directly, yet (c) there appear to be other ways of

reaching the goal that fit comfortably within the Constitution.”

135

Tushnet’s theory accounts for constitutional change only where “[o]ne

part of the text prohibits something, other parts of the text permit it,

and the Constitution itself does not appear to give either part priority

over the other.”

136

Therefore, the workarounds theory, at most,

accounts for only a portion of the constitutional change recognized by

other scholars.

William Eskridge and John Ferejohn’s account of super-statutes

accounts for some level of informal constitutional change that may also

be seen as interpretive. Their super-statutes result from “lengthy

normative debate about a vexing social or economic problem” that

results in a law that is “robust as a solution, a standard, or a norm over

time, such that its earlier critics are discredited and its policy and

principles become axiomatic for the public culture.”

137

A super-statute

becomes “one of the baselines against which other sources of law—

131

ACKERMAN, supra note 103, at 119.

132

Id. at 40.

133

Mark Tushnet, Constitutional Change: Constitutional Workarounds, 87 TEX. L. REV. 1499,

1503–04 (2009). Tushnet provides a typology of these workarounds. Id. at 1504–08. Jonathan

Marshfield’s more recent theory of “amendment creep” appears to be a subcategory of Tushnet’s

workarounds—one specific to the use of Article V to interpret other constitutional provisions.

See Jonathan L. Marshfield, Amendment Creep, 115 MICH. L. REV. 215 (2016) (examining how

judges use the formal Article V rules “when interpreting other constitutional provisions”).

134

Tushnet situates his approach as similar to both the interpretive positions and Ackerman’s

theory: “Yet another way of understanding constitutional workarounds is to see them as a

method of amending the Constitution without altering its text, in the same family as judicial

interpretation and ‘constitutional moments.’” Tushnet, supra note 133, at 1510.

135

Id. at 1503.

136

Id. at 1504.

137

William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215, 1216 (2001).

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2805

sometimes including the Constitution itself—are read,” and therefore

“[o]ccasionally, super-statutes can reshape constitutional

understandings.”

138

Eskridge and Ferejohn recognize a concept of

“quasi- constitutional” laws, capable of “alter[ing] substantially the

then-existing regulatory baselines with a new principle or policy.”

139

Eric A. Posner and Adrian Vermeule advance a theory of legislative

entrenchment. In their definition, such statutes “are binding against

subsequent legislative action in the same form.”

140

Posner & Vermeule

reject an equivalence with constitutional change,

141

because these

statutes lack powers normal to constitutional amendment, such as

expanding governmental powers.

142

They conclude that “entrenching

statutes are just a unique legal instrument,” and yet they describe

entrenching statutes as having the power to “bind later legislatures.”

143

This understanding is only possible if one is willing to break with the

traditional higher/ordinary law dichotomy, which would suggest that

any law capable of binding future legislatures is some form of

constitutional change, if not an explicit amendment.

All of these accounts seek to explain and/or legitimate a process of

informal constitutional change, and thereby—while disagreeing on a

variety of points and having many distinct features—all acknowledge

not only the existence, but also the importance of informal

constitutional change.

C. Structure, Rights & Effective Constitutional Change

Theories of informal constitutional change incorporate examples

of rights-based changes, structural changes,

144

or a mixture of the two.

Ackerman’s constitutional moments theory contains examples of

multiple types. He described the New Deal in terms of the rise of the

federal economic order and social welfare, as well as the development

of the administrative state. Ackerman’s account followed soon after

Michael Parrish’s, which pointed to the New Deal as a “constitutional

138

Id.

139

Id. at 1230.

140

Eric A. Posner and Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 YALE

L.J. 1665, 1680 (2002).

141

Posner & Vermeule conclude, “Entrenching provisions are not amendments, nor are they

‘equivalent’ to amendments in either a de jure or a de facto sense.” Id.

142

See id. at 1680–81.

143

Id. at 1681.

144

Structural constitutional changes may be defined as those involving the powers, purposes,

or functions of primary governmental institutions recognized in the Constitution, along with the

relationships among those institutions.

2806 CARDOZO LAW REVIEW [Vol. 42:7

revolution,” which not only “permanently and dramatically changed

the role of the judiciary,”

145

but also resulted in the development of a

national economic policy,

146

the creation of a federalized social-welfare

system,

147

and the rise of the “imperial presidency.”

148

On the other

hand, Ackerman’s account of the Civil Rights Revolution posits rights-

based changes rather than structural ones.

149

But of the many examples of informal constitutional amendment,

which ones created enduring constitutional change? The evidence more

clearly favors informal change successfully creating constitutional

changes that are structural, rather than rights based. Those that are

rights-based tend more towards slippage over time.

Ackerman ties his 1937 “constitutional moment” to two key

structural changes: first, the development of the administrative state

and second, the rise of presidential power. Ackerman was far from the

first scholar to emphasize the New Deal’s role in the rise of the federal

regulatory world. For at least four decades historians and legal scholars

have traced the rise of the administrative state. Robert Rabin explained

the development of the modern administrative state in terms of “eras”

of regulatory change.

150

Scholars also regularly explain why the administrative state is

unconstitutional. In 1994, Gary Lawson wrote about “[t]he [d]eath of

[c]onstitutional [g]overnment” in connection with the administrative

agencies.

151

Lawson argued multiple reasons why the agencies offended

the structural systems laid out within the Constitution:

Moreover, Congress frequently delegates that general legislative

authority to administrative agencies, in contravention of Article I.

Furthermore, those agencies are not always subject to the direct

control of the President, in contravention of Article II. In addition,

those agencies sometimes exercise the judicial power, in

contravention of Article III. Finally, those agencies typically

concentrate legislative, executive, and judicial functions in the same

institution, in simultaneous contravention of Articles I, II, and III.

152

145

Michael E. Parrish, The Great Depression, the New Deal, and the American Legal Order, 59

WASH. L. REV. 723, 726 (1984).

146

Id. at 726.

147

Id. at 727.

148

Id. at 726–27.

149

ACKERMAN, supra note 16.

150

Robert L. Rabin, Federal Regulation in Historical Perspective, 38 STAN. L. REV. 1189, 1191

(1986).

151

Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1233

(1994).

152

Id.

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2807

Lawson concluded, “The post-New Deal administrative state is

unconstitutional, and its validation by the legal system amounts to

nothing less than a bloodless constitutional revolution.”

153

Moreover,

by his account, this was no accident. He alleged, “The original New

Dealers were aware, at least to some degree, that their vision of the

national government’s proper role and structure could not be squared

with the written Constitution.”

154

The only way to deny a constitutional problem with the modern

administrative state is to reject the idea that any change has occurred.

In this approach, “The scope of national regulatory power finally

sustained by the Supreme Court in the late thirties is said to find firm

roots in 1789 understandings and early Marshall Court decisions

construing the necessary and proper and commerce clauses, and the

contrary intervening case law is dismissed as in error.”

155

Whether or not the rise of the administrative state is constitutional,

this modern form of government has shown great tenacity. Gary

Lawson concluded, “Faced with a choice between the administrative

state and the Constitution, the architects of our modern government

chose the administrative state, and their choice has stuck.”

156

By his

evaluation, despite the questionable status, “the essential features of the

modern administrative state have, for more than half a century, been

taken as unchallengeable postulates by virtually all players in the legal

and political worlds, including the Reagan and Bush

administrations.”

157

As a result, Lawson determined, “The post-New

Deal conception of the national government has not changed one iota,

nor even been a serious subject of discussion, since the Revolution of

1937.”

158

Similarly, scholars agree on the enduring change to the power of

the presidency.

159

To some minds, the rise of presidential power is

enough of a constitutional change to potentially unbalance our

constitutional structure. In 1973, Two-time Pulitzer prize winning

historian Arthur Schlesinger Jr., wrote The Imperial Presidency, a book

that narrates a history of the rise of presidential power and plots

153

Id. at 1231.

154

Id.

155

Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV.

723, 730 (1988).

156

Lawson, supra note 151, at 1231.

157

Id. at 1232.

158

Id. at 1231.

159

See David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARV. L. REV.

1457, 1459 (2001) (noting scholarly agreement that the expansion of executive power created

informal change).

2808 CARDOZO LAW REVIEW [Vol. 42:7

solutions for the problem of expanding, centralized power.

160

Eric

Posner and Adrian Vermeule, similarly traced this history, although

arguing that the centralization of power within the President is a natural

byproduct of modernity.

161

Andrew Rudalevige would place the blame,

at least part, on Congress, which he says has not effectively engaged

mechanisms to check presidential power.

162

Ackerman argued that not

only has presidential power increased unreasonably, but also that it has

reinforced political extremism.

163

This rise of presidential power

appears to be an enduring, informal constitutional change.

On the other hand, many scholars linked the New Deal not only to

the administrative state, but also to a particular social perspective: that

of the activist, regulatory, welfare state. In the 1980s and early 1990s,

scholars, traced the evolution of the Commerce Clause specifically to

the New Deal era decisions, concluding that congress possessed broad

powers to remedy national social ills.

164

Elizabeth Price explained,

“Broad judicial construction of the power to regulate commerce,

particularly since the New Deal, has, in the eyes of many (if not most)

legal scholars, effectively given Congress a general police power.”

165

Whether viewed as a product of improper jurisprudence and

reinterpretation,

166

or an informal constitutional change, many scholars

160

ARTHUR M. SCHLESINGER JR., THE IMPERIAL PRESIDENCY (1973).

161

ERIC A. POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND: AFTER THE

MADISONIAN REPUBLIC (2010).

162

ANDREW RUDALEVIGE, THE NEW IMPERIAL PRESIDENCY: RENEWING PRESIDENTIAL

POWER AFTER WATERGATE (2006).

163

See generally BRUCE A. ACKERMAN, THE DECLINE AND FALL OF THE AMERICAN REPUBLIC

(2010).

164

Michael Belknap wrote, “When Roosevelt took office, the Court was still interpreting

the Constitution in such a way as to impose significant restraints on the regulatory activity of the

federal government. By the end of the New Deal, however, federal power over economic and

social matters had become essentially limitless.” Michael Belknap, The New Deal and the

Emergency Powers Doctrine, 62 TEX. L. REV. 67, 67–68 (1983).

165

Elizabeth C. Price, Constitutional Fidelity and the Commerce Clause: A Reply to Professor

Ackerman, 48 SYRACUSE L. REV. 139, 142 (1998); see also Cass R. Sunstein, Congress,

Constitutional Moments, and the Cost-Benefit State, 48 S

TAN. L. REV. 247, 253 (1996) (“In the

1930s the powers of the national government were expanded in an extraordinary way, in favor of

a system that exercised something close to general police powers.”); Lawson, supra note 151, at

1233 (“The United States Congress today effectively exercises general legislative powers, in

contravention of the constitutional principle of limited powers.”).

166

Richard A. Epstein, The Proper Scope of the Commerce Power, 73 VA. L. REV. 1387, 1388

(1987) (rejecting this line of interpretation of the Commerce Clause because of the improper

powers with which it imbues Congress); Donald H. Regan, How to Think About the Federal

Commerce Power & Incidentally Rewrite United States v. Lopez, 94 M

ICH. L. REV. 554, 554 (1995)

(concluding that the interpretation that will “allow Congress to do anything it wants under the

commerce power”).

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2809

commented on this historical trajectory toward a stronger and stronger

welfare state.

Then the Supreme Court decided Lopez and Morrison. In 1995,

United States v. Lopez declared the Gun Free Schools Act

unconstitutional under the Commerce Clause.

167

Then in 2000, after

exceptional social energy went into enacting a federal civil-remedy for

victims of gender-based violence, the Supreme Court struck the statute

down in United States v. Morrison.

168

Gender-based violence was, in the

view of the Morrison Court, a local matter, and the “Constitution

requires a distinction between what is truly national and what is truly

local.”

169

More importantly, gender-based violence is a social and

criminal issue, and like guns, not an economic one.

170

Scholars could no

longer clearly trace a general police power of Congress back to 1937. At

the same time, the administrative state and the assorted regulatory

regimes continued unhindered, as did the expanded executive power.

While the social welfare component of the constitutional change

experienced slippage, the structural component remained steady.

The problem is simple: Informal constitutional changes involve an

unavoidable fuzziness. Gerken argued, “it is hard for judges to define

the precise content of informal amendments and even harder for judges

to acknowledge their existence, informal amendments occupy an odd

constitutional status. They make it hard for anyone to claim access to

an authentic account of constitutional meaning.”

171

She described this

as a product of the “vagueness and quasi-illicit status of informal

amendments.”

172

Ackerman acknowledged that an “evolutionary

approach contains great dangers,” emerging from the fact that the

movement does not “pin its transformative message down in a formal

amendment,” and as a result “relies very heavily on the good judgment

of courts.”

173

When compared, structural changes and rights-based

changes differ in their cultural fluidity. Without text, it is much more

difficult to outline, preserve, and enforce a change in constitutional

167

United States v. Lopez, 514 U.S. 549 (1995).

168

United States v. Morrison, 529 U.S. 598 (2000).

169

Id. at 617–18.

170

This was precisely the distinction used by the court when affirming the Controlled

Substances Act in Gonzales v. Raich, 541 U.S. 1 (2005).

171

Gerken, supra note 112, at 929; see also Price, supra note 165, at 144 (“[I]f we accept that

there may be (or are) legitimate, implicit constitutional amendments, the Constitution to which

we pledge fidelity necessarily extends beyond the written text to inchoate, unwritten policies, the

outer contours of which can be defined only by the subjective divination of unelected federal

judges.”).

172

Gerken, supra note 112, at 929.

173

ACKERMAN, supra note 16.

2810 CARDOZO LAW REVIEW [Vol. 42:7

rights. Changes in structure, on the other hand, benefit from

institutional preservation of power and institutional maintenance work.

This conclusion about informal constitutional’s change and its

effectiveness should be alarming. If any type of change should be done,

carefully, deliberatively, and formally, it should be a change that alters

the very structure of our republic.

D. Court Packing and Effective Constitutional Change

If the primary purpose of court packing or the threat of court

packing is informal constitutional change, then the key question should

be what type of change is desired. Our history suggests that court

packing could be utilized more clearly and lastingly for structural

change. The problem, however, is that the direct structural change of

court packing is simply a larger court. Additionally, to the degree that

court packing feels retributive, this type of structural change, set only in

a single statute, would likely reverse with the next election of a President

from the opposing political party. On the other hand, one could,

potentially, aim for a specifically politically balanced court, as the one

suggested by Epps and Sitaraman.

174

If however, such a court is created

by statute—as court packing could be—then it would need

entrenchment, which might or might not be feasible, for any chance at

longevity.

Any attempt to change substantive rights via court packing would

encounter slippage in the future, even if temporarily effective. Logically

then, court packing should be used only if needed for a temporary goal.

For example, court packing might be necessary and effective in the short

run if the current Justices so altered voting rights that constitutional

amendment became impossible without first re-establishing proper

access to voting. In this example, court packing would be a corrective

and temporary measure, put in place as a part of a larger plan of

constitutional change. Court packing would need to be followed with a

better method of establishing long-term change, such as formal

amendment, or at least a statute that might achieve the special status of

“transformative” in Ackerman’s lexicon or a “super-statute” in Eskridge

and Ferejohn’s.

174

Epps & Sitaraman, supra note 7, at 193.

2021] INFORMAL CONSTITUTIONAL AMENDMENT 2811

CONCLUSION

The original arguments against court packing carry less weight in

the current social and constitutional era. Less weight, however, implies

some validity to those concerns and within those arguments is an

acknowledgement that court packing comes with some risk to

governmental stability. Still, the original arguments against court

packing cannot be categorized as strong in the current climate.

A better argument against court packing is simply that it is unlikely

to be effective for any long-term informal constitutional change that is

responsive to key social issues. Informal constitutional change is more

clearly stable when it involves structural change rather than rights-

based change. In light of this, a goal of an enduring and publicly

accepted statute is more promising than court packing. A better

solution is re-learning how to formally amend the constitution.