fbpx

Is Court Packing Constitutional?

One of the major issues in the run-up to the election was whether Democrats planned to follow-through on threats to pack the Supreme Court in response to President Trump’s appointment of three justices. As Republican control of the Senate appears more and more likely, this issue may become moot for now. But there is certainly no guarantee that it will disappear from the Democrats’ rhetorical playbook. One question about the prospect has not received the attention it deserves: Is court packing even constitutional?

My views on the constitutionality of court packing have evolved. I used to believe that it was clearly constitutional under the Constitution’s original meaning, even though it was a pernicious practice that should strongly be resisted. But I have changed my mind. I now believe that it is unclear whether court packing is constitutional under the original meaning. Although my argument does not have a clear conclusion, the possibility that court packing might be unconstitutional is significant because virtually everyone else seems to think it is constitutional.

When I first planned to write on this subject, my position was going to be that originalism allowed court packing, but that it was not clear why nonoriginalists thought it was constitutional. Will Baude, however, beat me to the punch on this one (and I strongly recommend his post). The originalist argument for court packing is pretty straightforward: The Constitution gives Congress the power to increase the number of Supreme Court justices, and it does not appear to restrict the reasons why Congress may increase that number. Thus, Congress may increase the number of Supreme Court justices, even if its purpose is to change how the Supreme Court resolves cases.

While this argument suggests that originalism allows court packing, it is not clear why nonoriginalists also generally seem to accept its constitutionality. Nonoriginalists often do not feel limited by the constitution’s text and frequently rely on modern political principles instead. Until the recent surge in Democratic support for court packing, most constitutional lawyers believed that it involved an illegitimate attack on the independence of the Supreme Court. It is not clear why this apparently nontextual political principle is entitled to any less respect from nonoriginalists than many other principles that they do accept, such as “one person, one vote.” As Baude says, it would be good to know what the specific nonoriginalist argument is.  (For some thoughts on this by a nonoriginalist, see Daniel Epps’ analysis here.)

But I have now changed my mind on the originalist analysis of court packing. The Constitution does not simply say that Congress can add additional justices to the Supreme Court. Instead, it gives Congress this power through the Necessary and Proper Clause. Congress has the power to “make all laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution . . . in the Government of the United States, or in any Department or Officer thereof.” Since the Constitution establishes a Supreme Court, Congress can help to carry into execution the Supreme Court’s authority by adding positions to the Court.

While Congress can add positions, it can only do so if its law is “necessary and proper.” And here is where the issue becomes interesting. It is not clear what the original meaning of the necessary and proper authority of Congress is. While Congress would have the authority to court pack under some reasonable interpretations, it would not have that authority under other reasonable interpretations.

In particular, the question is what constraints “necessary and proper” imposes. The “necessary” component is often thought of as involving the means-end connection that Chief Justice Marshall discussed in McCulloch v. Maryland. How strict the means-end connection must be is an important and difficult question, but that is not the key issue here, since it seems obvious that establishing additional offices can help to carry into execution the authority of the Supreme Court.

Rather, it is the meaning of “proper” that is central here. One possibility is that proper does not add anything to necessary. Rather, the two terms should be read together as requiring the means-end scrutiny discussed in McCulloch. That has been the main (but not the only) way the Supreme Court has interpreted the clause in modern times.

But there are other possible interpretations of proper. An important understanding of proper is that it requires that the law Congress is passing not violate the spirit of the Constitution. The idea here is that the “necessary” means-end power can be extremely broad, which would allow the Congress to undermine important constitutional principles, such as federalism and separation of powers. Therefore, the word “proper” was added to require that this “necessary” authority not violate the spirit of the Constitution. In that way, Congress could not use its necessary authority to undermine the Constitution.

Significantly, support for this interpretation comes again from McCulloch, where Chief Justice Marshall summed up the meaning of the necessary and proper authority as follows: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional” (emphasis added). So Marshall himself seemed to recognize that laws inconsistent with the spirit of the Constitution violate the Necessary and Proper Clause. 

What, then, is the spirit of the Constitution, and how does it differ from the letter of the Constitution? The letter of the Constitution refers to the constitutional text. The spirit, in contrast, refers to the values underlying the text, as reflected in intent, purpose, or structure. Thus, something violates the spirit, but not the text of the Constitution, when it conflicts with the intent, purpose, or structure of the Constitution.

Court packing—understood as a law expanding the number of justices in order to change how the Court resolves cases—may violate the spirit of the Constitution. Such a law would not exercise the judicial power (and therefore would not violate the letter of the Constitution) because it would merely be adding seats and then allowing appointments to be made to those seats.

But it might violate the spirit of the Constitution. Congress would be exercising its broad authority over the number of seats to control the decisions of the Supreme Court. This would undermine the purpose and structure of the Constitution’s establishment of an independent Supreme Court. If Congress could simply expand the number of seats on the Supreme Court, the Court would not be independent.

By contrast, Congress could expand the number of seats on the Supreme Court in ways that would not violate the spirit of the Constitution. For example, if Congress believed that the existing number of justices could not keep up with the workload or that a larger number would lead to more accurate decisions, expanding the Supreme Court would be entirely constitutional.

This distinction between laws intended to pack the Court and laws intended to regulate its operation was implicitly recognized by the infamous court-packing scheme proposed by the Roosevelt administration during the New Deal. The Roosevelt Administration claimed it was expanding the size of the Supreme Court for legitimate reasons—because the older justices could not keep up with the workload—but this justification fooled no one. Everyone understood the real reason was to control the decisions of the Supreme Court.

If these interpretations of the Necessary and Proper Clause and the constitutional spirit are correct, then court packing that is done to control the decisions of the Court violates the Necessary and Proper Clause.

I am not sure that this interpretation of the Necessary and Proper Clause is correct. Nor am I sure it is wrong. I believe it is a quite plausible interpretation. And therefore it is plausible that court packing unconstitutionally violates the Necessary and Proper Clause.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on November 06, 2020 at 08:51:12 am

Rappaport's theory of "plausible deniability" of Congress's court-packing power seems more plausible on its face than the actual "plausible deniability" of Joe Biden's "I know nothing of my son's business activities." Biden's deniability was not plausible, but it worked because Biden's media co-conspirators eagerly embraced and promoted it with the public. Biden and his co-conspirators know full well that the plausibility of "plausible deniability" is wholly in the eye of the public, which, at the end of the day nowadays in dumbed-down America, means (sadly) that it depends wholly on the will of the media. Whereas the media eagerly embraced the plausibility of Biden's deniability, the fake-facts media will certainly reject the plausibility of any theory (such as Rappaport's theory) that would deny Congress's power to pack the Court in any way, shape or manner that the handlers of President "Weekend at Bernie's" Biden say is "necessary and proper." That means, in effect, that the public will also deny the plausibility of any such theory of deniability.

And, as it almost always does on hot political matters before it, the Supreme Court will follow the public's opinion, the constitution's original public meaning and Rappaport's originalist theory (or any other) be damned.

Hence, remove the stonewall ("There stands Jackson like a stone wall! Rally around Jackson's brigade!") of the Trump presidency (which now appears likely,) and the only barrier standing between the ascendant Jacobins of the Revolutionary Democrat Party and a 13 member Supreme Court is a Republican Senate.

Love the Turtle!

read full comment
Image of paladin
paladin
on November 06, 2020 at 10:30:36 am

Good grief.
The size of the USSC changed six times before 1869, a time period closer to "originalism" than the present. Clearly it is within the power of Congress to change the size of the USSC as well as change its appellate jurisdiction.

read full comment
Image of don dugi
don dugi
on November 07, 2020 at 09:56:45 am

The Supremes have, on many occasions, invalidated laws and regulations (and, most recently, Executive Orders) on the ground that they were "arbitrary and capricious", which is the opposite of "Necessary and Proper". None of the three branches of government have unchecked and unbalanced powers. If Congress makes a law and the President signs it for plainly "unnecessary and/or improper" (i.e., "arbitrary and/or capricious") reasons the Supremes can invalidate it. Expanding the size of the Court in order to control its decisions is precisely such an "unnecessary and improper" reason.

read full comment
Image of Carl
Carl
on November 06, 2020 at 10:41:20 am

Cuppla thoughts:

1) agree with Paladin re: media and deniability
2) Remember that the Democrat party of the 1930's was still a patriotic Party - not an anti-American party.
3) How anyone can even consider that the N&P clause does NOT demand that all laws be within the spirit of the constitution is beyond me and to even suggest that those who do hold such a view are even worhty of notice strikes me as nothing more than the usual academic "hot gasses" needed to hold up an argument.

read full comment
Image of gabe
gabe
on November 06, 2020 at 11:01:48 am

"For example, if Congress believed that the existing number of justices could not keep up with the workload or that a larger number would lead to more accurate decisions, expanding the Supreme Court would be entirely constitutional."

The Left's argument (if I were to make it) would be enhanced accuracy. Hence, the court needs to be expanded because the decisions of an ideologically skewed court are not accurate and therefore can be made more accurate by a reduction of originalist justices votes...

read full comment
Image of OH Anarcho-Capitalist
OH Anarcho-Capitalist
on November 06, 2020 at 11:02:08 am

I think Rappaport is correct; the Framers would have assumed that no law for increasing the court's size could take effect until after the next election. Some early states did not allow legislators to pass any laws introduced that session and others did not allow laws increasing legislators' per diems or travel fees to take effect until after the next election. Blatant self-dealing was verboten in other words and the Framers could not well imagine a court packer being elected or a blatant attempt succeeding so they did not explicitly exclude this. If SCOTUS objectively had to have more justices due to pandemic, war, whatever then a non-partisan selection process, like the sortition approach under consideration in Switzerland, would have to be employed: https://onlinelibrary.wiley.com/doi/10.1111/spsr.12416.

read full comment
Image of Robert E. Wright
Robert E. Wright
on November 06, 2020 at 17:15:44 pm

One of the things we are dealing with here is power. In this argument, we are not are not looking at assumptions of conditions not stated. The Democrats assumed that theree would be reciprocation after the Republicans refused to consider Garland. i explained to my spouse whose exposure to the issue is limited to the last ten years.
In 1801 the "lame duck" (having lost the vice presidency to Aaron Burr) president appointed the Secretary of State John Marshall as Chief Justice. The Senate confirmed. Marshall, for whatever reason, stuffed a commission for Justice of the Peace in the desk and did not deliver it.
Sometime later, the commission having never been delivered filed for equitable relief. Marshall's Supreme Court rejected Mr Marbury's claim, vexing con-law students for the next couple hundred years. So in my dotage i figured it out. Marshall had the power to to stick the commission in a desk drawer, figuring his cousin Jefferson might figure it out. Jefferson had no duty to deliver the commission, nor did his Secretary of State. There was possibly an assumption that Madison would deliver the commission or maybe no. Madison had the power to take either option but an assumption does not create a duty.
The founders were not a group of individuals who trusted anyone not to exercise powers they perceived themselves to have. And over a period of more than 230 years, assumptions of those long dead may or may not be remembered. Where there is power, it will be exercised.

read full comment
Image of Earl Haehl
Earl Haehl
on November 09, 2020 at 00:21:38 am

[P]roper … requires that … Congress … not violate the spirit of the Constitution….

What, then, is the spirit of the Constitution, and how does it differ from the letter of the Constitution? The letter of the Constitution refers to the constitutional text. The spirit, in contrast, refers to the values underlying the text, as reflected in intent, purpose, or structure. Thus, something violates the spirit, but not the text of the Constitution, when it conflicts with the intent, purpose, or structure of the Constitution.

[Acting] to change how the Court resolves cases … may violate the spirit of the Constitution…. This would undermine the purpose and structure of the Constitution’s establishment of an independent Supreme Court.

Query: For what reason did the Republicans announce that they would block any Supreme Court appointee Obama might offer, if not to change how the court resolves cases? Glad to finally see Rappaport finally acknowledging that the Republicans acted (and continue to act) with improper motives, contrary to the spirit of the Constitution.

read full comment
Image of nobody.really
nobody.really
on November 09, 2020 at 12:04:00 pm

Glad to see you back. I was worried that you may have fallen prey to some unthinkable fate - What with all those late night forays into local cemeteries harvesting ballots.

read full comment
Image of gabe
gabe
on November 09, 2020 at 10:04:32 am

I am a Roman Catholic who has to deal frequently with intellectual adversaries appealing to the "spirit" of Vatican II rather than to the actual texts of Vatican II. It is astonishing how the spirit of Vatican II is allegedly so completely different from the texts of Vatican II! To my mind, the last thing we need to do in interpreting any sort of document is to appeal to some alleged "spirit" rather than to the texts. The appeal to some "spirit" makes it impossible to control interpretation.

read full comment
Image of Douglas Kries
Douglas Kries
on November 10, 2020 at 18:08:00 pm

Debate is open on court packing. However, 2020 clearly demonstrates that ballot box packing is not only constitutional but the preferred mechanism for effecting representative democracy under the Living Constitution

read full comment
Image of Guttenburgs Press and Brewery
Guttenburgs Press and Brewery
on November 25, 2020 at 00:56:18 am

Pursuant to the U.S. Constitution, Article II, Section 2, Clause 2, the President “shall appoint ... Judges of the supreme Court ... which shall be established by Law”. Is this not a recognition of Congress’s power to establish the offices of Justices of the Supreme Court, without limitation as to their number?

read full comment
Image of Independence Intelligencer
Independence Intelligencer
Trackbacks
on November 07, 2020 at 07:07:01 am

[…] Source link […]

on December 03, 2020 at 06:34:54 am

[…] The Court’s work will be undermined if this practice becomes a new norm. Similarly, regardless of whether court-packing is unconstitutional as a matter of positive law, it would overturn the national traditions that make the Court a fully […]

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.