The Endgame of Court-Packing
44 Pages Posted: 28 Apr 2021 Last revised: 17 May 2021
Date Written: April 27, 2021
We estimate the size of the U.S. Supreme Court in a world in which the political parties engage in tit-for-tat court-packing. We do so by assuming that the Supreme Court is immediately expanded by four members and that future presidents who court-pack would add enough seats to ensure that a simple majority of justices were appointed by their party. In a series of simulations, we find that median result of repeated partisan court-packing would be to increase the size of the Court to 23 justices within 50 years and to 39 justices within 100 years. We also study the incentives for justices to retire strategically in a world with repeated partisan court-packing and the resulting effects of changes in strategic retirement on the size the Court. We find that court-packing would decrease the incentives for strategic retirement, but we also find that changes in justices’ retirement decisions would have little effect on the eventual size of the Court. By outlining the assumptions required to study this topic and estimating the impact different parameters would have on court expansion, we hope to generate more careful reflection on the potential consequences of this type of judicial reform.
Keywords: Supreme Court, Judicial Behavior, Judicial Politics, Court-Packing
JEL Classification: K00, K40
Suggested Citation: Suggested Citation