Why isn't Court-Packing Unconstitutional?

It is easy for originalists to reject challenges to court-packing; but the non-originalist arguments should be spelled out

My colleague Todd Henderson has an opinion piece at Newsweek arguing that court-packing—adding additional Justices to the Supreme Court, for the purpose of changing the Court's decisions—is unconstitutional. I don't agree with the piece, but it has already attracted a ton of criticism and that criticism deserves more scrutiny.

First, basic background. During the New Deal, Franklin Roosevelt threatened to pack the Supreme Court. But in the end he didn't. There is a scholarly debate about whether the Court changed course in response to the threat, and also about whether President Roosevelt would have prevailed if the Court had acted differently.

One remarkable document that emerged from that conflict is the report from the 1937 Senate Judiciary Committee, on which Todd relies, which argued at length that court-packing for the purpose of manipulating the Supreme Court was unconstitutional, because it violated the spirit of the Constitution and the separation of powers. Before you dismiss challenges to court-packing as frivolous, you should really read it. And these arguments appeared much more widely in the legislative debate at the time as well.

After I read this report, I found it disturbingly easy to imagine a judicial opinion invalidating court-packing (many of these points are in Todd's piece):

• First it would talk about how in general Congress has power to structure the Court, but that under the long-established principles of the separation of powers, no one branch can be allowed to effectively destroy another.
• Then it would argue that Congress has never before engaged in overtly outcome-motivated court-packing. (It's not clear whether this is true, but there's a respectable historical debate about the Civil War/Reconstruction era and other relevant moments, so the Court could say it with a straight face.)
• Then it would note that the closest precedent was the New Deal battle over court packing, in which the legislative branch—dominated by a supermajority of the President's own party—responded with powerful constitutional arguments, which may have helped carry the day against the President.
• And finally it could say that in the years since, the arguments against court packing have only become more powerful: We have an additional 83 years of practice in which court packing is seen as generally unacceptable. And we have the rise of explicit judicial supremacy in Cooper v. Aaron and many other cases, which place the Supreme Court at the apex of the interpretive hierarchy—a position it could hardly occupy if Congress could pack the Court.
• (Who would challenge the legislation? Presumably any Supreme Court litigant has standing to raise the question of who is lawfully entitled to hear his case. Though in some ways the Court would have to confront the issue earlier, when deciding whether the Justices would cooperate in administering the oath, give the new appointees office space, and so on.)

Now I don't agree with this argument at all, and I don't think the Supreme Court should strike down court-packing, if it occurs. But I know why I don't agree with this argument, and I'm genuinely uncertain about why others don't.

So far as I can tell, there are three basic paths to rejecting this argument:

1. The original meaning of the Constitution is our law, and under the original meaning, Congress's Article I powers allow it to set the size of the Court even if it does so in order to manipulate the Court's decisions.
2. The original meaning is not decisive, but even so, there are no unwritten separation of powers constraints on Congress's legislation concerning the Supreme Court.
3. There are unwritten separation of powers constraints on Congress's legislation concerning the Supreme Court, but court packing does not violate such a constraint.

I am an originalist, so point number 1 does it for me. But a lot of the people who reject this argument as frivolous do not accept originalism as decisive, so they must take one of the other two paths. Both of the other two paths seem plausible to me, but I think they would benefit from being spelled out.

For point number 2, if there are no nontextual separation of powers doctrines in this area, why not? And does that imply a rejection of other nontextual separation of powers doctrines, and if not what distinguishes them? This could be a very fruitful case study for understanding how non-originalists determine the validity of an asserted non-textual norm.

Or for point number 3, if court-packing complies with the nontextual separation of powers norms, why is that? One possibility is that court-packing is valid because it is a sort of "constitutional self-help," valid only because it is a form of necessary retaliation against supposed misbehavior by the Court. But if this is the theory, it would be quite arresting to spell it out, and it would imply that the validity of court-packing rises or falls on the charge of judicial misbehavior. I'm sure it is not the only possible form of argument number 3, but hearing the other arguments would be helpful, and would also inform the broader debates about court reform.

I am an originalist, and I do not think court-packing is unconstitutional. Non-originalists seem to agree, and I assume they have good reasons of their own for doing so. But those reasons are not obvious to me, and the constitutional debate would benefit if they were spelled out, with their implications.