Thread by @OrinKerr

A question, with three hypotheticals, for those who favor Supreme Court court-packing (or, if you prefer, "court expansion").

The question: How much of your view is about expected results?

The three hypotheticals are below.

(And yes, they're hypos, not real -- I get that.)

In all these hypotheticals, assume the year is 2022. Biden is President, and both the Senate and the House are in Democratic hands. Amy Barrett is on the Court. We have now had one year of the Supreme Court with Justice Barrett.

Here goes:

(1) Imagine that, for some reason, the Court responded to discussion of court-packing with a "switch in time that saves nine." Roberts and Gorsuch flipped left. The Court switched political direction and became a force for progressive social change, w/out changes in personnel.

If this were to happen, would you still favor court packing? That is, would you say that although the Court is now delivering liberal/progressive results, the Court is still illegitimate and adding Justices is still needed?

(2) New hypo. This time, imagine RBG had retired in 2013 and had been replaced by a liberal decades younger. Breyer then stepped down in 2021, and a Democratic senate confirmed a liberal replacement. The Court is now 5-4, with Roberts the key/swing/center vote.

Imagine that this Court is relatively centrist, with Roberts avoiding significant changes. Yes, it's often right-of-center, but the liberal side also gets some key victories.

Do you favor court packing to expand the personnel of *that* Court?

(3) Last hypo. Same Court as in hypo #2, but Roberts instead has run hard to the right. The 5-4 Court makes a hard right turn, completely overturning Roe, striking down affirmative action, perhaps overturning Obergefell.

Do you favor court packing to expand *that* Court?

FWIW, the goal of my questions is to try to understand how much of the perceived need to engage in court packing/ expansion is about who is on the Court (and how they got there) and how much of it is about expectations about how they're going to vote.

And as I noted at the outset, yes, these are only hypotheticals. I realize some will want to "fight the hypothetical" -- that is, decline to answer on the ground that it is not likely enough to happen to merit a response.

But it seems to me that the answers (at least from those willing to offer them) might be interesting, and maybe even illuminating.

And yes, this is just an academic exercise. If you're not interested in that, no need to reply that you're not interested. :)

Ack, one clarification:

In hypos 2 and 3, because RBG was replaced by a liberal in 2013, Amy Barrett is never on the Court. In these hypos, the current Court is Roberts/Thomas/Alito/Kavanaugh/Gorsuch on the right, and Sotomayor/Kagan/[Liberal]/[Liberal] on the left.