The memo, co-authored by law professor and Federalist Society founder Steven G. Calabresi, proposes a monumental expansion of the federal judiciary. It also is not subtle about its motivations. As the memo states in its introduction, a major purpose of this court-packing scheme is “undoing the judicial legacy of President Barack Obama.”
The Federalist Society is a highly influential conservative legal group that plays a significant role in selecting Trump’s judicial nominees. If Calabresi’s court-packing plan were to become law, the Federalist Society would likely have the opportunity to select hundreds of new judges.
As a candidate, Trump told Brietbart radio that if he is elected “we’re going to have great judges, conservative, all picked by the Federalist Society.” The society’s executive vice president, Leonard Leo, plays an especially large role in selecting Supreme Court nominees in Republican administrations. As the New Yorker’s Jeffrey Toobin wrote, “during the Administration of George W. Bush, Leo… played a crucial part in the nominations of John Roberts and Samuel Alito. Now that Gorsuch has been confirmed, Leo is responsible, to a considerable extent, for a third of the Supreme Court.”
The ambition of Calabresi’s memo is, at times, staggering. At one point he proposes doubling or tripling the number of federal appellate court judgeships — claiming that “the optimal number of active circuit court judgeships is at least double the current number of 167 authorized judgeships… and more likely between 2.5x and 3x the current number.” He also proposes adding 185 trial judges to the 673 currently authorized by federal law, though he also acknowledges that such a grand expansion of the federal judicial may not be political feasible.
The memo also seems to advise members of Congress to argue that this court-packing plan is necessary for politically neutral reasons, such as overworked courts. After a section captioned “Undoing President Barack Obama’s Judicial Legacy,” Calabresi follows up with this paragraph:
One of the most straightforward ways for Republicans to address this problem is to make the case for a new judgeship bill that would enable the President to appoint a sufficient number of new judges that would help to change the balance of power on each of the circuit courts back to a conservative majority. This memorandum helps make that case by focusing on the problem of the federal courts’ caseloads and unpublished opinions.
Calabresi’s court-packing scheme would be a bookend to a similar scheme that gave Republicans control of the Supreme Court.
After the death of conservative Justice Antonin Scalia left an evenly divided Court, Senate Republicans effectively reduced the number of justices to eight for more than a year by refusing to confirm anyone to fill the vacant seat until after President Obama left office. “This vacancy should not be filled until we have a new President,” Senate Majority Leader Mitch McConnell declared. Before Election Day, when it appeared that Democratic candidate Hillary Clinton would be the next president, some Senate Republicans indicated that they would also refuse to confirm anyone Clinton nominated to fill the Supreme Court vacancy as well.
Should Calabresi’s plan move forward, it could easily lead to the end of an independent judiciary in the United States. Not only would the plan give Trump — and Trump’s allies in the Federalist Society — tremendous influence over the courts, but it would also open the floodgates to retaliatory efforts by Democrats.
If America holds a free and fair election in 2020, and if Democrats regain control of the government after that election, they would have no incentive not to respond to Calabresi’s proposal with their own court-packing legislation — perhaps even legislation that adds several new justices to the Supreme Court.
Calabresi did not immediately respond to a request for comment about his proposal, or whether he intended to publish it on a publicly available website.