North Carolina Law Review

University of North Carolina School of Law

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Revival of Roosevelt: Analyzing Expansion of the Supreme Court of North Carolina in Light of the Resurgence of State “Court-Packing” Plans

96 N.C. L. Rev. 1126 (2018)


Dating back to President Roosevelt’s infamous 1937 proposal, the term “court-packing” has been considered synonymous with “power-grabbing,” the general assumption being that supreme court expansion attempts are fueled by partisan motivations. Yet, while the stigma associated with President Roosevelt’s plan initially seemed to foreclose the widespread use of court-packing, the past decade has seen an atypical resurgence in attempts to expand the number of state supreme court seats.


The Supreme Court of North Carolina, in particular, has been the focus of court-packing rumors on several occasions in recent years. These have been met with predictably negative reactions from political opponents, as well as hostility from several non-partisan organizations expressing concerns about judicial independence and the threat to public trust and confidence that could come from Supreme Court expansion in the absence of workload-based justifications. None of these court-packing predictions ever materialized, and the number of Supreme Court of North Carolina justices has remained unchanged for several decades. However, given the enduring rumors of North Carolina court-packing, the North Carolina General Assembly’s recent modifications to the state judicial election processes, the unexpected results of North Carolina’s 2016 gubernatorial and judicial elections, and the successful passage of court-packing legislation in Georgia and Arizona in 2016, North Carolina’s court-packing debate is far from resolved.


This Comment therefore undertakes an analysis of the modern court-packing debate, specifically focusing on the prospect of a North Carolina court-packing plan. It begins with a general history of court-packing legislation in the United States, examining President Roosevelt’s 1937 plan and the state-level court-packing plans that have been proposed over the past decade. It then discusses the relevant constitutional bases for the North Carolina judiciary and examines the current landscape, including the workload of the state supreme court, the General Assembly’s recent modifications to the state’s judicial election processes, and the divergent results of North Carolina’s 2016 judicial elections. The Comment proposes three prerequisite factors that should be considered before expanding state supreme courts: (1) the practical necessity of additional justices, determined by looking at the state’s population as well as the court’s efficiency and workload; (2) the cost of expanding the court; and (3) the effect of court-packing on the integrity and independence of the judicial branch. When applying these factors to the prospect of a North Carolina court-packing plan, this Comment asserts that it is clear that any benefit from a court-packing plan is outweighed by the resulting financial detriment, further-diminished caseload, destruction of public confidence in the courts, and erosion of judicial power.




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