to protect the basic infrastructure of American democracy.11 Klarman argues that “Unless Democrats expand the size of the Court… democratic reform will be doomed before it even begins” because the current Republican-leaning Court is likely to strike down such necessary reforms. Additionally, reforms and rights that the majority of Americans desire could be protected and expanded. The legality of abortions, the introduction of Medicare for all, more expansive climate change regulation, and controls on firearms would be feasible under a rebalanced Supreme Court.12 These issues are supported by the majority of Americans but are in jeopardy under the current makeup of the Supreme Court. If packing the Supreme Court was such a good option, why hasn’t it been passed? In addition to staunch Republican opposition, many worry about the negative repercussions of packing the Court. Many argue that packing the Court would only further politicize and delegitimize the Court in the public’s view. Additionally, a common criticism of court-packing is that it might solicit a similar response from Republican legislation and Congress, who might look to swing the Court in their favor.13 However, some have suggested that significant political changes may create a new political equilibrium instead of eliciting a response. In their article in the Yale Law Journal, Daniel Epps and Ganesh Sitaram suggest that liberal court-packing to introduce voter protection and anti-gerrymandering laws could introduce a “new progressive equilibrium.”14 Despite some optimism, it is equally possible that the Court’s balance could shift each election, destroying the political independence of the Court 11
Michael Klarman, The Democrats Last Chance to Save Democracy, The Atlantic (February 22, 2021), https://www.theatlantic.com/ideas/archive/2021/02/expandingcourt-now-or-never/618063/. 12 Lydia Saad, Americans Still Oppose Overturning Roe v. Wade, Gallup (June 9, 2021), https://news.gallup.com/poll/350804/americans-opposed-overturning-roe-wade.aspx. 13 Thomas Jipping & GianCarlo Canaparo, Why Court Packing Would Be Devastating to Our Republic, The Heritage Foundation (October 5, 2020), https://www.heritage.org/courts/commentary/why-court-packing-would-be-devastatingour-republic. 14 Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. 148 (October 2019).
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