Against Court Packing, or a Plea to Formally Amend the Constitution

Authors

Jill M. Fraley, Washington and Lee University School of LawFollow

Document Type

Article

Publication Title

Cardozo Law Review

Publication Date

2021

Abstract

The original arguments against court packing carry less weight in the current social and constitutional era. Less weight, however, implies some validity to those concerns and within those arguments is an acknowledgement that court packing comes with some risk to governmental stability. Still, the original arguments against court packing cannot be categorized as strong in the current climate.

A better argument against court packing is simply that it is unlikely to be effective for any long-term informal constitutional change that is responsive to key social issues. Informal constitutional change is more clearly stable when it involves structural change rather than rights-based change. In light of this, a goal of an enduring and publicly accepted statute is more promising than court packing. A better solution is re-learning how to formally amend the constitution.

Recommended Citation

Jill M. Fraley, Against Court Packing, or a Plea to Formally Amend the Constitution, 42 Cardozo L. Rev. 2777 (2021).