My New Lawfare Article on “Why Callais Doesn’t Justify Court-Packing”

Today, Lawfare published my article “Callais Doesn’t Justify Court-Packing.” Here is an excerpt summarizing key points:

The Supreme Court’s recent decision in Louisiana v. Callais—barring nearly all use of the Voting Rights Act (VRA) to create majority-minority congressional districts—has been met with outrage by many on the political left and led to renewed calls for court-packing. For example Rep. Ro Khanna (D-Calif.) has said that “[w]e need to expand this morally bankrupt court from nine to 13.” House Minority Leader Hakeem Jeffries (D-N.Y.) has said that “everything should be on the table,” presumably including court-packing. Former vice president and 2024 Democratic presidential nominee Kamala Harris has expressed similar sentiments. A number of other Democrats advanced court-packing plans even before Callais.

The Callais decision has some flaws. And the conservative majority on the Supreme Court has made some serious errors in other cases, such as the Trump presidential immunity decision. But court-packing remains a dangerous idea that Americans across the political spectrum should reject. Callais is not without merit, and—at the very least—not as bad as its most strident critics claim. More generally, the Supreme Court is far from being a pure “MAGA” Court and has, in fact, constrained the Trump administration’s abuses on several important fronts, and has allowed lower courts to constrain it elsewhere. Court-packing would create a slippery slope to the destruction of judicial review, thereby benefiting power-grabbing presidents like Trump, and imperiling constitutional rights, particularly those of minority groups. To the extent Callais is a problem, it can be better addressed by steps such as banning gerrymandering. There are also better remedies for various other shortcomings of the Court, such as enacting term limits and imposing an ethics code.

The rest of the article covers these issues in greater detail.

By coincidence, this is my second popular media article this week that is likely to annoy the left more than the right (along with yesterday’s Washington Post article critiquing NYC Mayor Zohran Mamdani’s badly flawed and unconstitutional housing policy). I’m sure I will get back to the business of annoying the right soon enough!