How Court Packing Gave Us the Modern Supreme Court

Whet Moser
9 min readApr 28, 2021

John Marshall’s opinion in Madison vs. Marbury, the foundation of its role as a co-equal branch, is magisterial. The case that inspired it was anything but.

Silhouette portrait of John Marshall by William H. Brown / Library of Congress

Ain’t it something? What makes it special — this whole moment came from nothing.

— Bubba Sparxx, “Ugly”

The left has been feeling its oats in the past year, and has every reason to — while standard-bearer Bernie Sanders fell quickly to Joe Biden in the primaries, the left (and Sanders in particular) has been able to push the new president. His administration has treated left-wing econ think-tanks like a farm team.

Recently the Biden administration announced a “Supreme Court commission” to address one of the left’s shoot-the-moon ideas, upzoning the highest court in the land and packing it with Democratic appointees to balance its rightward shift. The left’s judicial infrastructure isn’t as robust as its economic infrastructure — reflecting, perhaps, the interests of its standard-bearer — and certainly isn’t as robust as the right’s, and the commission’s roster reflects that.

So it’s probably not going to go anywhere the left wants, or anywhere at all. The lower ranks of the judiciary are perhaps a…



Whet Moser

Freelance writer/editor in Chicago. Words in Marker, The Atlantic, COVID Tracking Project, elsewhere. Author of ‘Chicago: From Vision to Metropolis.’