Court packing, as discussed on The Bob Zadek Show, is the practice by which Congress creates new judicial positions so that a president can make appointments that shift a court’s political balance. Guests across three episodes treat it as a structural question about the Supreme Court’s composition rather than a single controversy: how many justices there should be, who decides, and what happens to judicial independence when the answer becomes a matter of ordinary politics.
Definition and mechanics
Law professor Philip Hamburger, in an episode devoted to the topic, explained the basic mechanism: the point of having a court with independent judges is that decisions about who has violated the law are non-political, but the danger of court packing is that Congress can create new judicial positions for a president to fill, shifting the court politically. The result, he said, is that the will of Congress and the president dictates results rather than the judgment of the judges Philip Hamburger on Court Packing (2021).
David Kaplan, in an earlier episode, described the same mechanics in concrete terms: court packing means adding seats to the Court, and only an act of Congress is needed to do it. If Democrats took the White House and both chambers of Congress, he said, they could pass a law increasing the size of the Supreme Court from nine to 11, appoint two liberals, and be in control 6-5 Demystifying the Supreme Court (2019).
Bob Zadek framed the stakes in his own introduction, calling court packing a profound and perhaps irreversible threat to the form of American government, and noting that nine justices has not always been the number. Hamburger agreed that nine is not a magic number, explaining that the Court began with six because there were three circuits—Northern, Southern and Middle states—each needing two justices, and that the number was increased over the 19th century as the country expanded Philip Hamburger on Court Packing (2021).
Historical precedents
Hamburger identified the closest thing to successful court packing as occurring around the time of the Civil War, when Congress increased the size of the court under Lincoln and afterwards, for fear that Southern sympathizers might dominate it. He called that the only clear successful example in American history, and stressed that it came in response to a civil war, when the loyalties of the court were uncertain—an extreme case, unlike the present attempt to pack the court in response to mere politics Philip Hamburger on Court Packing (2021).
Kaplan recounted the 1937 episode: court packing died a quick death after FDR proposed it, with liberals and Republicans both criticizing it, and it became unimportant because the Supreme Court began upholding New Deal laws on its own. Zadek interrupted to offer his own reading—that the Court wanted to save the institution and was intimidated by the threat—while Kaplan noted that scholars disagree about why the Court changed Demystifying the Supreme Court (2019).
Hamburger added a lesser-known precedent: Teddy Roosevelt, campaigning in defense of administrative power, threatened to reconfigure the courts and to deprive judicial decisions of their binding effect, making court packing a campaign promise. Since 1912, Hamburger argued, the progressive party and later the Democratic Party have kept court packing in the back of their minds—not because most wanted it, but because the threat intimidates judges, and that intimidation has worked Philip Hamburger on Court Packing (2021).
The Garland precedent and the case for packing
Kaplan said he had come around tentatively to the position that the hard left and many Democratic candidates were probably right that the Court ought to be packed. His reasoning rested on the Republican stonewalling of Merrick Garland, which he called legal but an outrageous violation of norms. Because of that, he argued, Democrats have to fight fire with fire—you can’t bring a knife to a gunfight—and in the short term court packing is probably, regrettably, a good idea Demystifying the Supreme Court (2019).
Kaplan was candid about the costs. In the short term, he said, packing would be terrible for the Court, making it seem even more brazenly political than much of the public already thinks. He predicted that Republicans would eventually add two seats themselves, producing a 13-member court, a bigger building and a completely politicized institution. His hope was that over the long haul—10 years or 50—both parties and ideologies would disarm, lower the temperature and appoint justices differently Demystifying the Supreme Court (2019).
Ilya Somin, a professor of law, described the Democratic argument in similar terms: some Democrats say they oppose court packing as a general rule but regard the current situation as a special case, because they believe Republicans got away with something improper by blocking Garland’s nomination in 2016, enabling Trump to nominate Neil Gorsuch for that seat. Somin called that view at the very least naive, predicting that Republicans would not accept the justification and would escalate in turn How to Create a Legitimacy Crisis (2019).
Effects on judicial review and rights
Zadek asked Somin whether judicial review would be weakened to the point of non-existence under a norm of court packing. Somin answered that it might not disappear completely but would certainly be much weaker, because a coalition controlling both houses of Congress and the presidency could ensure there would be no effective judicial review of policies it supports and considers important. He added that actual packing might not even be necessary: the mere threat could keep justices from rocking the boat How to Create a Legitimacy Crisis (2019).
Zadek pressed the connection to the Bill of Rights, asking whether there is a direct line between court packing and diminished effectiveness of the Bill of Rights. Somin agreed it would be diminished, noting that some rights have historically been protected more effectively through judicial review than political majorities would protect them on their own. He observed an irony: some on the left rightly worry that Trump eroded political norms, yet support court packing, even though a situation in which political leaders can undermine norms is also one where, absent judicial review, norms protecting rights could be undermined How to Create a Legitimacy Crisis (2019).
Asked whether anything good could be said for court packing, Somin said nothing sufficient to outweigh the evil, though he allowed that people who oppose judicial review in general as undemocratic should welcome it How to Create a Legitimacy Crisis (2019).
Hamburger made a parallel argument about the administrative state. There is a challenge underway to the administrative state, he said, which deprives people of self-governance, jury rights, the right to go to court and the right to an independent judge; in defense of that administrative power, court packing is seen as important again. He argued that Biden, by establishing a commission to study the possibility rather than simply threatening packing, was using the threat itself—the old intimidation game—and that this was how FDR and Teddy Roosevelt before him won. Hamburger said he did not think Biden would actually pack the court, but that in a sense he had already won, because the intimidation game is what wins Philip Hamburger on Court Packing (2021).
Term limits as an alternative
Kaplan said that what he and others would support is term limits for justices, calling the idea that they should serve for life outdated. He noted that life expectancy in the late 18th century was barely 65, whereas now a 50-year-old appointee might serve 30 more years, making the stakes higher. He supported an 18-year term limit, but observed that it would take a constitutional amendment and would never happen, because the party in power will never agree to it and passing an amendment is really hard Demystifying the Supreme Court (2019).
Across episodes: escalation and intimidation
The three episodes show a shift in emphasis rather than a disagreement about mechanics. Kaplan, in April 2019, treated packing as a live partisan option and weighed its short-term benefits against its long-term costs, resting his tentative support on the Garland blockade. Somin, later that month, focused on the escalation dynamic and the consequences for judicial review and the Bill of Rights, calling the one-time-response argument naive. Hamburger, in 2021, reframed the entire question around intimidation rather than actual packing, arguing that the threat alone had already changed judicial behavior and that Biden had won without acting. The later treatment is less about whether Democrats should pack the Court and more about whether the threat has already done its work.
What the sources do not cover
The excerpts do not state the current size of the Court beyond the nine justices mentioned, nor do they identify the specific statute or bill by which seats would be added. They do not describe the outcome of any packing proposal, and the Hamburger excerpt breaks off mid-sentence in a later section. The sources also do not give the full holding or amendment basis of any case mentioned, including Roe v. Wade, Bush v. Gore or Fulton.