Georgetown law Professor Steve Vladeck is one of the leading critics of the conservative majority on the Supreme Court. But in an insightful recent post on his substack, he outlines key reasons why "court expansion" is a bad response to its flaws. The cure is likely to be worse than the disease:
[I]t seems to me that those who are fully onboard the expansion-or-bust train should have to do more than simply assert that having four new Democratic appointees on the Court in 2029 would be a self-evidently "good" thing. If nothing else, proponents of expansion should have to answer the following four questions:
- How do we avoid touching off a race to the bottom, where each time one party controls the House, Senate, and presidency, it expands the Court to ensure an ideologically and politically sympathetic majority?
- If a race to the bottom is unavoidable, how do we avoid further (and potentially fatal) erosion of public confidence in the Court—which will quite transparently be little more than a lever of power for whichever party last had such a trifecta?
- If eroding public confidence in the Court is a feature, and not a bug, how do we insulate against the same erosion of public confidence in lower federal courts?
- What is the case for why expansion is a better way to achieve the desired reforms than alternatives that would (or, at least, should) avoid many of these forward-looking concerns?
