by Hiram Sasser, Executive General Counsel
There is a dangerous temptation in American politics to believe that every political problem can be solved by winning one more vote. If the Supreme Court issues decisions that a political party dislikes, why not simply change the number of justices and appoint new ones? Congress has the constitutional authority to determine the size of the Court, after all. Why not use that authority?
Because the power to do something is not the same as the wisdom to do it.
Court packing would establish a precedent that could transform the Supreme Court from an independent constitutional tribunal into an institution whose membership could be manipulated whenever one political party gains sufficient power. That would be a dangerous development for Democrats, Republicans and every American who expects the Constitution to restrain government rather than simply ratify the preferences of whoever controls Washington.
The warning comes not merely from constitutional theory, but from American history. In 1937, President Franklin D. Roosevelt proposed reorganizing the federal judiciary after the Supreme Court had struck down major elements of his New Deal. His plan would have allowed him to appoint as many as six additional justices under certain circumstances, potentially changing the Court’s ideological balance.
One of the most important opponents was a Democrat from Dallas, Representative Hatton W. Sumners of Texas.
Sumners was hardly an automatic opponent of Roosevelt. He had supported most of the early New Deal, including major agricultural and industrial legislation. He had even worked on legislation concerning Supreme Court justices and retirement. But when Roosevelt proposed expanding the Court, Sumners recognized that something fundamentally different was at stake.
As chairman of the House Judiciary Committee, Sumners had enormous influence over the proposal. He decided that the bill would not come out of his committee. The Texas State Historical Association records that Sumners understood that if the bill were reported to the House, it probably would pass. Instead, he kept it bottled up while organizing opposition among members of Congress and the public.
Sumners’s position is especially instructive today because he was not simply opposing Roosevelt from the other side of the political aisle. He was a Democrat resisting a Democratic president. He was demonstrating a principle that modern Washington desperately needs: constitutional statesmanship sometimes requires politicians to defend institutions that frustrate their own political objectives.
The Supreme Court is supposed to be frustrating sometimes.
Its purpose is not to produce the preferred policy outcomes of the president, Congress or either political party. Its purpose is to interpret the Constitution and federal law. Americans can criticize particular decisions, pass legislation within constitutional limits, elect presidents who nominate different judges and, when necessary, amend the Constitution.
What they should not do is change the composition of the Supreme Court simply because they dislike the decisions being rendered by the existing Court.
Once that principle is abandoned, there is no obvious stopping point.
Imagine that one party adds four justices. The opposing party wins the presidency and Congress a few years later and adds four more. The first party returns to power and adds another five. Before long, the size of the Supreme Court becomes an election-cycle bargaining chip.
The Court would become more political precisely because politicians had deliberately made it so.
This is where Venezuela provides an important warning—not because the United States is Venezuela, but because the Venezuelan experience demonstrates how changing the structure of a nation’s highest court for political purposes can damage judicial independence.
In 2004, during the government of Hugo Chávez, Venezuela’s National Assembly changed the law governing the country’s Supreme Court and expanded it from 20 justices to 32. The new law also allowed the governing coalition to appoint new justices with a simple majority under circumstances in which existing members had required a two-thirds vote. Human Rights Watch warned at the time that the changes could enable the governing coalition to obtain an overwhelming majority on the court.
The comparison should be made carefully. The United States in 2026 is not Venezuela under Chávez. America’s Constitution, federal system, political institutions, civil society and judicial traditions are fundamentally different. Court packing in the United States would not automatically produce the Venezuelan experience.
But that distinction does not make Venezuela irrelevant. It makes the example useful as a cautionary tale.
The danger begins when political leaders convince themselves that extraordinary institutional changes are justified because the other side is dangerous, unreasonable or abusing the system. In Venezuela, supporters of the 2004 changes offered arguments about the judiciary’s workload and institutional needs.
Critics, however, warned that the practical effect was to give the governing coalition the ability to reshape the country’s highest court. Subsequent scholarship and international observers have identified the erosion of judicial independence as a major component of Venezuela’s democratic decline.
America should not wait to discover how far that road leads.
The lesson of 1937 is particularly powerful because the American system actually rejected the temptation.
Roosevelt’s proposal encountered resistance from members of his own party. Sumners kept the measure from advancing through the House Judiciary Committee, while other Texas Democrats, including Vice President John Nance Garner and Senator Tom Connally, opposed it. The Senate Judiciary Committee ultimately recommended rejection, and the full Senate defeated the proposal 70–20.
That episode should not be remembered merely as an interesting footnote from the New Deal era. It was an example of institutional self-restraint.
Sumners understood that political power has to be exercised within a larger constitutional framework. His opposition was not based on the belief that the Supreme Court was infallible. He did not have to agree with every judicial decision to believe that the Court should remain independent.
That distinction is critical.
A judge can be wrong. A Supreme Court decision can be wrong. A constitutional interpretation can be challenged. But the remedy for a bad decision should not automatically be to alter the institution so that a different political coalition can guarantee a different result.
Otherwise, every election becomes a potential constitutional crisis.
The argument for court packing often begins with a familiar refrain: The other side did it first. Or: The Court has become too political. Or: We have to restore balance.
But if the Court has become too political, making its membership more directly dependent on partisan victories is hardly the cure.
Presidents already possess enormous influence over the judiciary through legitimate appointments. Elections have consequences. When a justice retires or dies, the president nominates a successor and the Senate exercises its constitutional role of advice and consent. That process can and should be vigorously contested.
But there is a fundamental difference between filling a vacancy and manufacturing new seats because the existing Court has reached decisions a political majority dislikes.
The first is constitutional succession.
The second is institutional retaliation.
That is why Hatton Sumners’s example deserves renewed attention.
He demonstrated that a politician can recognize the difference between winning a political battle and preserving a political system. He could have viewed the Supreme Court as another battlefield in the fight over the New Deal. Instead, he treated judicial independence as a principle worth defending even when doing so meant opposing his own president and his own party.
That is the standard Americans should demand today.
If the Supreme Court issues a decision you believe is wrong, fight it. Make the constitutional argument. Pass legislation where the Constitution permits it. Elect different presidents. Confirm different judges when vacancies arise. Pursue a constitutional amendment when that is the proper remedy
But do not redesign the Supreme Court simply to guarantee that your side wins.
That road may offer a short-term political victory. But once court packing becomes an accepted weapon, every future majority inherits the weapon—and every future minority has reason to fear it.
The genius of the American constitutional system is that it does not assume today’s political majority will always be right. It creates institutions capable of saying no.
That is not a flaw to be corrected.
It is the point.
And the lesson Hatton Sumners left behind in 1937 is worth remembering: sometimes the most important act of political courage is refusing to give your own side power that you would fear in the hands of your opponents.
America should resist court packing—not because the Supreme Court is perfect, but because an independent judiciary is more important than any single Supreme Court decision.
The Court belongs to the Constitution, not to the party that happens to control Congress.
And that is a principle worth defending before it becomes a casualty of partisan victory.
