First, they say, this idea is counterproductive. If the Democrats pack the courts, Republicans will retaliate by packing the courts even more when next they are in power. (“It’s time,” these people assure you, “for some game theory.”) That is, if the left expands the court’s membership to 15, then the Republicans will expand it to 17, or 19, when they are in power next. And that makes sense until you remember: didn’t the Republicans already adjust the size of the court (shrinking it to eight, by refusing to consider Judge Merrick Garland’s nomination) when they had the power to do it?
And if, in a decade, the right did further expand the court and take back control of it … how would that leave the left in any position that’s worse than now? This objection (“what if they retaliate?!”) feels, in present circumstances, a bit like worrying that if the Allies invade Normandy, the Nazis will shoot at them. It’s not wrong, exactly, but it seems bereft of some of the essential context.
Another objection is more romantic. Court-packing, some worry, would destroy the legitimacy of the supreme court as a non-partisan institution – it would say farewell to the court as a forum where neutral principles, rather than ideology, governs. Whereas the game theorists of the prior objection are mostly annoying, this objection is almost sad: what can one say to it but “Oh, honey?”
Every well-socialized adult must decide for him- or herself the decision that represents, for them, the definitive refutation of this Schoolhouse Rock vision of the American judiciary.