Working Papers

The Endgame of Court-Packing
Current Draft: May 2023 (with Dan Epps, Kyle Rozema, & Maya Sen)

We estimate the size of the U.S. Supreme Court in a world in which the political parties engage in tit-for-tat court-packing. We do so by assuming that the Supreme Court is immediately expanded by four members and that future presidents who court-pack would add enough seats to ensure that a simple majority of justices were appointed by their party. In a series of simulations, we find that the median result of repeated partisan court-packing would be to increase the size of the Court to 23 justices within 50 years and to 39 justices within 100 years. We also study the incentives for justices to retire strategically in a world with repeated partisan court-packing and the resulting effects of changes in strategic retirement on the size of the Court. We find that court-packing would decrease the incentives for strategic retirement, but we also find that changes in justices’ retirement decisions would have little effect on the eventual size of the Court. By outlining the assumptions required to study this topic and estimating the impact different parameters would have on court expansion, we hope to generate more careful reflection on the potential consequences of this type of judicial reform.

Identifying Constitutional Law
Current Draft: December 2021 (with Mila Versteeg)

Empirical research in comparative constitutional law has largely relied on coding countries’ “large-C” constitution—that is, the text of the written constitution—and not their “small-c” constitution—that is, the larger set of interpretations, conventions, and laws that can also be part of constitutional law. The potential biases associated with approach to coding constitutional law has been repeatedly raised as a criticism of this line of research. That said, incorporating small-c constitutional sources into empirical comparative constitutional law research first requires developing an approach to systematically identifying small-c constitutional law across countries. We outline three possible kinds of approaches for doing so: (1) Entrenchment Approaches, which emphasize entrenchment as the defining feature of constitutions and constitutional law; (2) External Approaches, which emphasize core constitutional functions, such as structuring and limiting government and rights; and (3) Internal Approaches, which emphasize local understandings of the constitution and constitutional law. While these approaches yield only minor differences when identifying Large-C constitutions, they produce substantial differences when identifying small-c constitutional sources. We argue that which approach is most suitable depends on the objectives of the comparative research project.