Cartoon criticizing Franklin D. Roosevelt's 1937 court-packing plan. (NA)
Georgetown law Professor Steve Vladeck is one of the leading critics of the conservative majority on the Supreme Court. But in an insightful recent post on his substack, he outlines key reasons why "court expansion" is a bad response to its flaws. The cure is likely to be worse than the disease:
[I]t seems to me that those who are fully onboard the expansion-or-bust train should have to do more than simply assert that having four new Democratic appointees on the Court in 2029 would be a self-evidently "good" thing. If nothing else, proponents of expansion should have to answer the following four questions:
How do we avoid touching off a race to the bottom, where each time one party controls the House, Senate, and presidency, it expands the Court to ensure an ideologically and politically sympathetic majority?
If a race to the bottom is unavoidable, how do we avoid further (and potentially fatal) erosion of public confidence in the Court—which will quite transparently be little more than a lever of power for whichever party last had such a trifecta?
If eroding public confidence in the Court is a feature, and not a bug, how do we insulate against the same erosion of public confidence in lower federal courts?
What is the case for why expansion is a better way to achieve the desired reforms than alternatives that would (or, at least, should) avoid many of these forward-looking concerns?
He adds that court-packing could easily "permanently undermine judicial review as an institution." The rest of his piece (which is behind a paywall) offers far from reassuring answers to these questions.
I have offered similar criticisms of court-packing in a long series of articles and blog posts, most recently in a June Lawfare article where I explained (among other things) why the Supreme Court's recent decision in Louisiana v. Callais doesn't justify packing, and in a July UnPopulist article critiquing a court-packing proposal advanced by Andy Craig. In these pieces, I explain why the Court's record of checking dangerous abuses of government power - though not without serious flaws - is considerably better than many critics claim. In addition, I argue that court-packing is likely to undermine effective judicial review - not only by the Supreme Court, but also by lower courts.
Like Vladeck, I think some of the issues that concern critics of the Court can be more effectively addressed in other ways. For example, in the Lawfare article, I explain how Congress can fix the flaws of the Callais decision by banning or restricting gerrymandering. It could also enact a binding ethics code for the justices. Justice Alito was wrong to suggest otherwise, back in 2023. That said, if your main goal is a sweeping reversal of much of the Court's recent jurisprudence, there may be no easy way to achieve that quickly without court-packing or something like it. I would argue that any benefits that might achieve are outweighed by the enormous costs of destroying judicial review.
In addition, if your objection to the Court's recent decisions is that they often don't do enough to constrain unconstitutional actions by other branches of government or by the states, court-packing is likely to make that problem worse, not better. Destroying judicial review won't enforce tighter constitutional constraints on the executive or bring back Roe v. Wade. To the contrary, it would largely destroy any hope of doing so.
In another recent piece, I assessed "non-packing" rationales for increasing the size of the Supreme Court. There, I argue that these rationales are mostly weak; and, to the extent they have merit, there are better ways to address them than an expansion that amounts to court-packing. I even outline possible ways to increase the size of the Court without creating an opportunity for court-packing (this would require allowing the party that doesn't hold the White House to pick some of the new justices).
Yesterday, in United States v. City of New York, yet another federal court ruled against the Trump administration in a sanctuary city case. "Sanctuary" jurisdictions are state and local governments that restrict their law enforcement agencies and other employees from assisting federal immigration enforcement and deportation efforts in various ways. In this case, Judge Reyes of the US District Court for the Eastern District of New York upheld New York City laws restricting local law enforcement information-sharing and other assistance to federal immigration enforcers.
The court ruled that federal law does not preempt these policies, and that if if it did, there would be a violation of the anti-commandeering requirements of the Tenth Amendment:
Even were the Court to find that the United States has standing and the challenged provisions are preempted—both answered in the negative above—United States' claims would still fail because the anticommandeering doctrine of the Tenth Amendment to the Constitution of the United States precludes relief.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X….
The United States argues it is "not seeking to compel participation in immigration enforcement … but rather to remove Defendants' express and implicit obstacles to the Executive's duty to carry out its immigration enforcement duties…." New York City replies "if accepted, [the United States' claims] would require the City to affirmatively assist the federal government in enforcing immigration laws in violation of the Tenth Amendment's anticommandeering doctrine…." New York City is correct, at least partially.
The United States seeks injunctive and declaratory relief to preempt the challenged provisions… If the challenged provisions were struck, while New York City would not be obligated to carry out federal immigration enforcement, they would be barred from prohibiting their agencies and employees from engaging in federal immigration enforcement by expending personnel, property, and other resources to (1) detain individuals and (2) implement inter-agency information-sharing, including disclosing personally identifiable information, all potentially in violation of state law. And of course, there is nothing within federal law that obligates states to participate in federal immigration enforcement or compels states to comply therewith.
The United States' preemption arguments amount to nothing more than a backdoor around the Tenth Amendment and rest on a false distinction between (a) compelling local governments' participation in federal immigration enforcement and (b) prohibiting local governments from dictating how their personnel and other resources may be utilized towards federal immigration enforcement….. "
The basic principle—that Congress cannot issue direct orders to state legislatures—applies" to commands for "affirmative action" and the imposition of "prohibitions." Murphy [v. NCAA], 584 U.S. at 455 (citation modified). If states cannot remain free to control their agencies and employees to resist federal immigration enforcement, which is within states' constitutional prerogatives, the Tenth Amendment anticommandeering doctrine means nothing.
This reasoning is correct. And it is notable that this ruling - like many others protecting sanctuary cities - relies heavily on the Supreme Court's 2018 anti-commandeering decision in Murphy v. NCAA, written by Justice Samuel Alito (probably the Court's most conservative justice), and joined by all the other conservatives then on the Court. In that case, the Court emphasized that the anti-commandeering doctrine bars Congress from dictating the actions of state and local legislatures, regardless of whether the dictation takes the form of an affirmative mandate, or a prohibition against legalizing or barring something under state law.
Judge Reyes also rejects the administration's argument under the "intergovernmental immunity" doctrine, which bars states and localities from directly regulating federal agencies or "discriminating" against them. Like the court in the recent case of United States v. New Jersey, he correctly emphasizes that there can be no discrimination when there is no other comparable activity that gets more favorable treatment under the sanctuary jurisdiction's policies:
"Differential treatment is critical to a discrimination-based intergovernmental immunity claim." New York, 814 F. Supp. 3d at 282….; "[A] comparator is necessary." New York, 810 F. Supp. 3d at 353. The United States discrimination claim fails for lack of a comparator.
The United States does not and cannot identify a similarly situated entity. State and local agencies and their officers do not enforce immigration law, nor do members of the public… As the United States concedes, the Federal Government holds the "exclusive charge of enforcing immigration law…." Not only are other federal law enforcement agencies with different charges differently situated, "[f]or a state law to unconstitutionally discriminate against the federal government, it must treat comparable classes of federal and non-federal employees differently, not different classes of federal employees." Illinois, 796 F. Supp. 3d at 534
I would add that, as I explained in a recent post, the entire antidiscrimination element of the intergovernmental immunity doctrine is dubious, and should probably be overturned by the Supreme Court:
[T]he whole doctrine of intergovernmental immunity strikes me as bogus, judge-made law. There is no provision in the Constitution requiring it. And the federal government is not some historically oppressed minority group protected by the antidiscrimination provisions Fourteenth Amendment. Where state and local governments are otherwise free to refuse to help the feds, that autonomy should not be forfeited merely because they choose to support potentially similar activities by state or local governments, or by the private sector. Obviously, a district court cannot refuse to obey Supreme Court precedent in this field. But I hope the Supreme Court might someday reevaluate that precedent.
This is just the most recent of a long line of defeats for Trump in sanctuary city cases, in both his first and second administration. Judge Reyes cites close to a dozen such cases over the last year alone. I summarized this jurisprudence more fully in a post covering three other recent sanctuary cases, last month:
In cases where the administration has tried to directly coerce states and localities into cooperating, courts have rightly ruled this violates the Supreme Court's "anti-commandeering" precedents, a series of decisions reached primarily by conservative justices, which hold that the federal government may not force state and local governments to help enforce federal law or carry out under federal purposes. In cases where Trump has sought to withhold federal funds from sanctuary jurisdictions, courts have (also rightly) ruled that the executive cannot impose conditions on federal grants that were not authorized by Congress and (in some cases) that the Trump conditions are unconstitutionally coercive. For my analyses of Trump II court decisions on these issues, see here, here, and here.
Yesterday's ruling may be appealed. But if so, it is unlikely to be overturned.
Trump has posted a few rare wins in sanctuary cases with unusual facts, such as in the Contracts Clause case I analyzed in the September post. But, such cases are highly exceptional. And, as explained in the September post, the Contracts Clause decision has various flaws, and would not greatly impede sanctuary jurisdictions even if it survives on appeal.
Overall, Trump has been losing these kinds of cases so much that he might even get tired of losing.
Recent political developments have rekindled longstanding debates over "fusionism," the combination of libertarianism and conservative traditionalism that dominated the American right from roughly the late 1970s through the early years of this century. That dominance has been severely undermined and likely overthrown by the rise of nationalism and "postliberalism." But some would like to revive it. Reason editor Stephanie Slade's important new book Fusionism: Liberty, Virtue, and the Future of the American Rightoutlines one notable case for such a revival.
I agree with Slade, Jonathan Adler, and others that fusionism is far preferable to nationalism and postliberalism. But I am skeptical about its political viability. In addition, fusionism has significant conceptual flaws. Finally, at least in the short to medium term future, an alliance with "abundance liberals" is probably a more promising political strategy for libertarians than a revival of fusionism.
Despite my relative skepticism about a revival, I readily acknowledge fusionism's significant past achievements, and ongoing superiority over various other tendencies on the conservative right. Between the 1970s and the early 2000s, fusionist conservatives and libertarians (sometimes with the help of moderate/"neoliberal" Democrats) made huge contributions to such achievements as deregulation of many sectors of the economy, reducing tax rates, reinvigorating constitutional protection for property rights and limits on federal government power, and the West's triumph in the Cold War. While early fusionists sometimes undervalued the Civil Rights movement and were soft on racism, over time most of them came to promote color-blindness and and abjuring racial and ethnic discrimination in government policy. They even, for a long time, succeeded in making racial and ethnic color-blindness the dominant approach to such issues in the conservative movement. William F. Buckley and other fusionists also worked to purge the political right of its longstanding tendencies towards anti-Semitism. In combination, these are no small achievements.
The Rise of Right-Wing Nationalism and Postliberalism
Instead of color-blindness and nondiscrimination, we now have a conservative movement increasingly permeated with racial and ethnic bigotry and anti-Semitism of the kind fusionists sought to purge. Prominent right-wing "influencers" go so far as to claim we need to bar Indian immigrants because they work too hard and undermine the objectives of "homogeneity" and "maintain[ing] a white majority in the country." Many congressional Republicans also promote religious discrimination in immigration and other policies. In foreign policy, Trump has undermined relations with liberal democratic allies like Canada, Australia, and the nations of the European Union, and kowtowed towards illiberal nationalist authoritarians like Vladimir Putin.
Trump's idiosyncratic personal predilections contribute to some of these developments. But most arise from inherent tendencies of nationalism, which gravitates towards a zero-sum view of the world that leads to expanded government control of the economy, repression of racial and ethnic minorities, undermining civil liberties, and authoritarianism.
The "postliberalism" advocated by many leading right-wing intellectuals and activists is just as bad. Postliberals like Adrian Vermeule and Patrick Deneen are very clear about their desire to massively expand government control over the economy and civil society, and destroy both economic and personal liberties. Unlike nationalism, postliberalism has little mass public support. But it does have considerable influence among the intellectuals and activists who may staff future Republican administrations and congressional offices.
Illiberal big-government nationalism holds a strong sway over the Republican base. The 2024 election dramatically illustrates that. In the 2024 GOP presidential primary, Trump was challenged by Nikki Haley (a prominent advocate of traditional fusionism) and Ron DeSantis (popular governor of a major red state who tried to, in effect, split the difference between MAGA nationalism and pre-2016 conservatism). And, yet, despite the events of January 6, 2021 and numerous scandals, Trump not only beat these opponents, but did so very easily. While that was partly due to his particular type of charisma, it also highlights the influence of illiberal nationalism over the GOP. Even now, with Trump increasingly unpopular, most congressional Republicans shy away from challenging his worst policies, for fear of losing to MAGA types in GOP primaries. Many of those who are willing to challenge him on major issues have either been ousted in GOP primaries (like Rep. Thomas Massie), or chose not to run for reelection because of the likelihood of suffering that fate (e.g. - Rep. Don Bacon).
Facing a difficult political environment in the 2026 midterm elections, some congressional Republicans have become more willing to criticize a few of Trump's policies, such as the badly mismanaged Iran War. But very few have repudiated his big-government nationalism across the board or called for a return to fusionism.
Perhaps this will all change once Trump leaves the scene. But we shouldn't count on it. At this point, the major likely contenders for the 2028 GOP presidential nomination - Vice-President J.D. Vance and Secretary of State Marco Rubio - seem like they are vying for the mantle of inheritors of Trump's worst tendencies, not opponents of them.
Inherent Limitations of Fusionism
Even if fusionists do manage to regain control of the Republican Party and the conservative movement, the ideology's inherent limitations might undermine its value. The extent to which fusionism is compatible with strong protections for economic and personal liberty is actually ambiguous. Frank Meyer, a key founder of fusionism in the 1950s and 60s, famously argued that liberty and virtue are mutually reinforcing because liberty is what enables people to be truly virtuous. A person who only does the right thing because he is forced to by the state isn't truly virtuous at all. Think, for example, of a man who only refrains from violence and theft for fear of going to prison. A paragon of virtue he is not.
This position has considerable merit. But most social conservatives, including many otherwise sympathetic to fusionism, don't fully buy it, or even come close. They argue that, at least in many instances, we want to achieve virtuous behavior, regardless of the motivation for it. Or, at least, that doing the right thing for a bad reason is far preferable to not doing it at all. Thus, if you believe that using pornography, prostitution, gambling, taking various drugs, and so on are inherently immoral, then you may well advocate using government power to suppress these activities, even if people who only refrain out of fear of punishment are not as virtuous as those who abjure them voluntarily.
Many conservative fusionists do, in fact, believe that a wide range of consensual activities like the above are inherently evil. Alternatively, many believe that we have to suppress at least some of them out of paternalism. For example, they argue we must suppress drugs, prostitution, and gambling, because people who do these things don't understand what's good for them.
For these reasons, most conservative fusionists have in fact been willing to endorse many policies that severely curtail liberty. Even Ronald Reagan - the president whose administration most exemplified fusionism - promoted a major expansion of the War on Drugs, a federal policy that massively curtails liberty by killing or imprisoning hundreds of thousands people merely because they have used, possessed, or distributed substances the government considers too risky. Reagan's drug policies were not as bad as Trump's policy of outright murdering supposed drug dealers in the Caribbean and Pacific. But they were very bad, even so - and a striking example of the limitations of fusionism.
Elsewhere, I have argued that, at this moment in political history, the best available potential allies for libertarians are "abundance liberals." They are by no means perfect. But they agree with us - to a large extent - on numerous major issues, including trade, immigration, nuclear power, "YIMBY" housing deregulation, and more. And, like us, they tend to oppose both left and right-wing ethnic identity politics (on which latter point see recent articles by Matt Yglesias and Kelsey Piper). On the whole, they are less paternalistic and less prone to advocate suppression of consensual activities than most fusionist conservatives. They also have considerably greater influence over the Democratic Party and the political left, generally, than fusionists currently have in the Republican Party and the conservative movement.
The left, of course, has its own dangerous illiberal menace in the form of "democratic socialists," whose statism has much in common with that of MAGA nationalists. But this faction is nowhere near dominating the Democratic Party and the political left to the degree that nationalists have come to dominate the right.
None of this proves that libertarians cannot continue work with fusionist conservatives at all. There are many issues on which there is still room for cooperation. I myself have worked with such conservatives in the Society for the Rule of Law, and in the effort to combat Trump's tariffs (where they played crucial roles in the litigation that led to the invalidation of Trump's IEEPA tariff power grab by the Supreme Court and in currently ongoing efforts to challenge his attempts to use other laws to reimpose sweeping tariffs). Some conservative fusionists are more pro-liberty than others. And, for most, there is considerable variation across issues.
And, perhaps, things will be different in a decade or two. The Trumpist moment in right-wing politics may dissipate over time, though it seems unlikely to do so quickly.
Productive cooperation between libertarians and (some) conservatives is still very much possible. But we should recognize that fusionists are unlikely to regain control over the conservative movement anytime soon, and that fusionism has notable inherent limitations. Thus, we should look for other allies, and carefully limit the percentage of our eggs that we put in the fusionist basket. At this point, it cannot safely hold very many of them.
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