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Opinion: Packing the Supreme Court would lead to a slippery slope

October 15, 2020. Summarized by summa-bot.

Walter Olson writes that whatever you think of the politics, packing the Supreme Court would be bad for the law itself -- bad for the efficiency and quality of the court's work, bad for its credibility and public legitimacy.

Where the number is much larger, courts tend either to have a more limited docket to begin with, or to break up into panels to hear cases.

The median federal circuit court has 12 judicial seats, but most cases before these courts are heard by three-judge panels.

Only as an exception does the court convene its full roster of judges to rehear a case.

At the Supreme Court, by contrast, all justices hear all cases, and hardly anyone who has served on the court thinks it should begin doing its work in panels.

The idea is that one, two, or even more of today's Supreme Court seats are held illegitimately: the Justice Antonin Scalia seat because it should have been filled reasonably promptly after it opened up, Justice Ginsburg's seat because it should not be filled so promptly, and perhaps others because presidents making the appointments were elected with less than half the popular vote.

Marking out some justices' seats as "stolen" directly attacks the legitimacy of not just the work of those justices but the full court's work, so it's paradoxical that the usual remedy advanced is to stack the body with additional votes while leaving the supposed "thief" jurists in place to go right on authoring opinions and deciding close cases with their votes.

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