This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman’s dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely, where a Democratic President and Congress would be willing to limit themselves to using court reform as a means of repudiating the Republican Party’s constitutional gains but not as a means of pursuing (in fact or in appearance) their own comprehensive reform agenda. The question that this analysis leaves hanging is whether this pathway remains satisfactory when concerns aside from democratic legitimacy are factored into the equation, such as a concern with the protection of certain fundamental rights, or with the possibility of public and institutional backlash against court-packing.
Richard Mailey, Court-Packing in 2021: Pathways to Democratic Legitimacy, 44 SEATTLE U. L. REV. 35 (2020).
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