A constitution that puts judge-made law first will be an increasingly unoriginalist constitution as precedent is piled on precedent.
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.