Another problem with court packing is that we’re not playing one-move chess here: there will be a tit-for-tat response. When the GOP regains power, it could pass a law demoting a group of justices to the lower courts—a move which would very likely be constitutional. And then it could “re-pack” the Court with a new set of right-wing justices. If this is the game we end up playing, then we’ve only deepened our political dysfunction. (Indeed, that was Biden’s argument against the idea.)
There is another, better, way to rein in partisan judges: by stripping the Supreme Court, and also the lower federal courts, of jurisdiction where Congress does not want partisan judges second-guessing particular decisions—especially where, as is so often true, the Constitution does not speak directly to an issue and courts are making political choices rather than legal judgments. That strategy, while perhaps a bit more difficult to reduce to a sound bite or a campaign slogan, gets directly at the problem of partisan judicial activism. It is also a more focused and less overtly politicized approach compared with court packing.
Perhaps the most powerful argument for jurisdiction stripping is that the Constitution clearly permits it. Article III, section 1 of the Constitution gives Congress complete discretion on whether to create the lower federal courts, a power that Congress has used from the founding to limit lower courts’ jurisdiction. And Article III, section 2, clause 2 explicitly empowers Congress to make “exceptions” to the Supreme Court’s appellate jurisdiction—that is, to pick and choose for approximately 99 percent of the Supreme Court’s total docket what cases the Court has the power to hear.
