First, some legal scholars, are calling on Democrats to commit to “pack the Court” by adding new seats to the Court as soon as Democrats recapture the presidency and Congress—and filling those seats with extra Democratic-appointed justices. These calls preceded Kennedys’ retirement (they began shortly after President Trump was inaugurated, as Josh Blackman observed at the time). But they seem to be taking on new urgency now: Fordham’s Jed Shugerman, for example, announced on Twitter that if President Trump succeeds in appointing a replacement for Kennedy, then the next Democratic president and Congress should add six(!) new seats to the Supreme Court in 2021. (And abolish the filibuster for legislation, if it’s necessary to get the six bonus seats.) Ian Samuel, a Harvard Law fellow, staked out a similar position immediately upon Kennedy’s retirement.
It’s hard to think of a better way to galvanize Trump-skeptical Republicans for the 2020 vote than to preemptively announce a Democratic court-packing agenda for 2021. If law professors hadn’t started vowing that the next Democratic president would “pack the court,” then a pro-MAGA Super PAC would have made it up.
In this case, Shugerman’s court-packing agenda is particularly ironic given his vocal denunciation, just months ago, of a conservative professor’s harebrained proposal to pack the lower courts with new judicial seats—which was, as Shugerman noted, a transparent move toward “undoing President Obama’s judicial legacy.”