Court restructuring is anticonstitutional and threatens the entire constitutional system

Constitutional norms are the informal, unwritten, and habitual rules of political contestation that ensure stability and fair play.1 83 They protect values like limited government, judicial independence, and the separation of powers.

One classic example was the long-standing norm, set by George Washington, against a President serving more than two terms.184 After Franklin Roosevelt violated this norm by serving as President for four terms, Congress passed, and the state legislatures ratified, the Twenty-Second Amendment, constitutionalizing the norm that "[n]o person shall be elected to the office of the President more than twice."185 Breaking a constitutional norm may technically be legal, but the common understanding is that such a breach violates the spirit of the Constitution. The violation is not "unconstitutional," but because the norm undergirds the foundational principles of our constitutional system, it is nonetheless "anticonstitutional."1 86

The willingness to break norms is called "constitutional hardball."'87 Today, most would argue that both political parties, perhaps to greater or lesser degrees, are breaking multiple norms, especially in the area of judicial appointments.1 88 Court-packing would be one type of constitutional hardball because it would violate the long-standing norm that the Court's size should not be changed for political reasons.

Progressive scholars are tom about whether to violate norms. The debate has a common underlying narrative: conservatives are winning political battles because they are ruthlessly breaking norms, and progressives will continually lose until they are willing to respond in kind. It is time, hard-nosed progressives argue, to "play dirty" and stop bringing knives to gun fights.189 Refusing to break norms is a form of unilateral disarmament. Progressives too should play constitutional "hardball" or perhaps even "beanball." Other progressives, alongside many conservatives, retort that playing dirty exacerbates "a destructive race to the normative bottom" that will take down the entire constitutional system.190

The debate within progressive circles is of interest to scholarship because it is a recurring one, the latest iteration of a problem that has long plagued constitutional politics. The problem rears its head whenever one party, conservative or progressive, tries to radically shake up the constitutional system.