Page:EO 14023 Commission Final Report.pdf/89

 the Court’s long-term legitimacy and independence than to open up the Court to be packed by potentially dangerous and even authoritarian political movements going forward.

Opponents of Court packing emphasize that polls show that large majorities of the public oppose expanding the Supreme Court. For that reason alone, they argue, it is difficult to justify Court packing on grounds that it might serve democratic interests. Moreover, to the extent that one goal of Supreme Court reform is to enhance the power of democratic bodies, Court packing would not serve that end. Expansion would leave the Supreme Court’s existing jurisdiction in place, as well as its existing approach to judicial review. An expanded Court could just as easily hold unconstitutional federal and state government conduct as the current Court. In addition, as noted above, given that Court packing could lead to cycles of Court expansion, critics of the measure believe it to be questionable that it would “balance” the Court to more closely align it with popular opinion over time.

Other critics of Court expansion contend that, to the extent it aims to align the outcomes of Court decisions with the policy preferences and values of the country, the reform is misguided and misconceives the role of the Court. They emphasize that no single American public exists and that popular views and opinions are divided across a range of issues the Court addresses. Moreover, opponents contend, some of the Court’s most prominent decisions on subjects ranging from school prayer to criminal justice were quite unpopular, and that decisions that meet with considerable political backlash sometimes become “canonical,” as with Brown v. Board of Education. These critics emphasize that, as Brown underscores, the Supreme Court may play its best role in our democracy when it polices the political process by working to ensure that the process is more open and responsive to all members of society—whether by helping to dismantle racial segregation; invalidating laws that discriminate upon the basis of gender or sexual orientation; or requiring that each person’s vote be given equal weight. Opponents conclude that Court packing would so deeply compromise the Court’s legitimacy and independence as to impede its capacity to serve this vital role. In the long run, they argue, putting judges under the thumb of sitting politicians is unlikely to serve the broader interests of a democratic constitutional order.

As we noted at the outset of this Part, there is profound disagreement among Commissioners over whether adding Justices to the Supreme Court at this moment in time