"Court-Packing Isn't Just a Bad Idea—It's Downright Unconstitutional"

An interesting column by Dan Schmutter in the New York Post today, arguing that, while Congress's setting the initial size of the Court was "necessary and proper" and thus allowed under the Necessary and Proper Clause, changing the size to change its decisions would not be:

Can it reasonably be said that court-packing, an act whose goal is to materially alter the balance of power in Washington for explicitly ideological ends, lies within "the letter and spirit of the Constitution" [quoting McCulloch v. Maryland]? Hardly. Rather, it is a frontal assault against the separation of powers—a value deeply ingrained in the Constitution.

Thus, even if court-packing might meet the loose definition of necessary, it is difficult to say that such an assertion of congressional power would qualify as necessary and proper.

That important limitation on the Necessary and Proper Clause remains valid today. As recently as 2012, in the ObamaCare case NFIB v. Sebelius, the high court held that Congress couldn't look to the Necessary and Proper Clause for the authority to enact the Affordable Care Act's individual mandate. (The government ultimately won the case because the court held that the mandate was a tax and was therefore within Congress' enumerated powers.) … In rejecting the government's position, the court explained that "such laws, which are not consistent with the letter and spirit of the Constitution, are not proper means for carrying into execution Congress' enumerated powers. Rather, they are, in the words of The Federalist, merely acts of usurpation which deserve to be treated as such."

I'm skeptical about the argument; it seems to me that if setting the size of a body is "necessary and proper," changing it (whatever the underlying motive) would be, too. But I thought this was an interesting argument, and worth passing along.

Comments

[DaivdBehar]

If the Supreme Court insists on making and on repealing laws, let it be the size of a legislature, like 500 Justice. Move it to a small government culture location like in the Midwest, where they have suffered under the Washington Commies.

Exclude anyone who has passed 1L, because their intellect has been destroyed, and they are all now the d-word. Pick random members of the jury pool, or even bums puking in the streets for an immediate upgrade in the decisions and in the clarity of the writing. Make it an even number to avoid those awful 5-4 decisions.

These goals can be achieved with a Judiciary Act.

[TwelveInchPianist]

"I'm skeptical about the argument; it seems to me that if setting the size of a body is "necessary and proper," changing it (whatever the underlying motive) would be, too."

Setting the size is necessary because there is no size specified. Changing it is not.

[Josh R]

Schmutter conceded it was "necessary" as defined in McCulloch (convenient or useful).

[Stephen Lathrop]

TwelveInch, the decree of its necessity is for Congress, said Marshall.

[David Nieporent]

So maybe Marshall was wrong.

[JJJSSS]

The original size of the Supreme Court was 6. Are you suggesting that we should only have 6 justices? As such, shouldn't the last 3- Gorsuch, Kavanaugh, and Barrett- all be kicked off the Court

[Beldar]

Don't mess with checks and balances. Every supposed "cure" is worse than the disease; any branch using tricks and temporary expedients to alter them can be disciplined in turn by them.

I don't want to see Congress change the size of the SCOTUS, but neither do I want that possibility taken entirely off the table.

[QuantumBoxCat]

The author of that piece tries to get the ideologically charged term "court packing" to do all of the work in his argument. But, more importantly, the writing ignores the fact that Congress has added and removed Supreme Court seats on several occasions.

In 1801 it passed legislation that would reduce the number of seats to 5.
In 1802 it repealed the 1801 act, setting the number of seats back to 6.
In 1807 it authorized an additional seat on the Court
In 1837 it authorized the addition of two seats
In 1863 it authorized an additional seat
In 1866 it passed legislation that would reduce the number of seats by 3
In 1869 it set the number at 9

That's a lot of unconstitutional legislation.

[Michael P]

The 1802 Congress pretty clearly decided that the 1801 act was wrong, and perhaps unconstitutional -- the 1801 act never took effect. The 1866 law only took partial effect, until it too was promptly repealed as an error.

During the decades from 1802 through 1863, the country grew very quickly -- justifying the addition of justices. It is hard to argue that we suddenly need more justices, after 150+ years of the current number.

The defenses of the current court-packing proposals ignore that FDR's attempt failed after his own party recognized the move as unconstitutional: as Wikipedia quotes the Senate Judiciary Committtee's report, it was "essential to the continuance of our constitutional democracy" that the proposal "be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America."

[KHP54]

That’s a lot of unconstitutional legislation

That's not a very winning argument.

[Commenter_XY]

So Congress spent roughly 70 years figuring out the right balance on SCoTUS (1800-1870). And the structure using 9 SCoTUS justices has worked out fine for 150 years (1870-2020). No need to screw with it.

There is nothing 'new' in the debate today that was not said 200+ years ago. The arguments for expansion and contraction are the same.

[Dilan Esper]

Can we fricking get away from this dishonest, unscholarly, disingenuous, anti-intellectual notion that any political issue of the moment has to be barred by the constitution? This sort of thing makes the entire legal profession look like nothing but a bunch of hacks.

The Constitution says one Supreme Court. It doesn't set the number of justices. Congress has messed with the number of justices. Congress has also considered messing with the number of justices. At all times, Congress' power to change the number of justices has always been assumed to be constitutional. Why wouldn't it be?

I am on record as opposing court packing. It would be a terrible idea. But lawyers and legal scholars have an obligation to tell the truth. Our job is not to think of an argument, no matter how frivolous, to defend anything. It's to say what the law is or make reasonable arguments to change it. That's in our professional ethics codes.

What is the public supposed to think when they read someone saying this? It basically looks like anything goes, and that law is just another political tool where there's no such thing is truth and you can say anything.

No court packing is not unconstitutional (even though it's bad). And this guy ought to be ashamed of himself for arguing it is.

[QuantumBoxCat]

If I'm in a position where I need a lawyer, the last thing I want is to pay for the services of one who thinks there job is to just "say what the law is." I want a lawyer that will start with the conclusion that benefits my position, and then construct an argument that supports that conclusion. That is the skill that the lawyer provides; constructing legal argument from conclusions.

I'd be pretty unhappy if I'm in court and my lawyer says to the judge "your honor, I've canvassed the relevant statutes and case law on this issue and it all leads to a single clear conclusion; my client is as fault."

[Rossami]

And yet that's exactly what you want your lawyer to tell you before you go into court. If the facts, statutes and case law all point against you, take your lumps - and don't waste money on more lawyers making unwinnable arguments. It might not benefit you but at least there might be a little more money left over for your kids.

[Bored Lawyer]

My first legal boss used to point to his New York admission to the bar on his wall, that said he had been admitted "to practice as an Attorney and Counsellor at Law." He told the clients, "When I am speaking for you in court, I am your attorney. When I am advising you in my office, I am your counsel. In court, I put the best face I can on your case. Here, my job here is to tell you my honest assessment of your case."

[SKofNJ]

Rossami: You have to admit that when you consider the stupidity of many, many judges, it is hard to figure out when an argument is unwinnable.

[Dilan Esper]

As others point out, you do actually want a lawyer who knows what the law is.

And frivolous legal arguments do not win. If you have a position where there is no non-frivolous route to victory, your lawyer's job is to tell you to settle.

[Brett Bellmore]

To paraphrase a famous quote, 'Frivolous legal arguments do not win. For if they do win, none save internet cranks dare call them frivolous.'

Yesterday's frivolous arguments win today all the time, we just eventually get over our shock at it and change our standard of what's frivolous.

[Dilan Esper]

That's not true, and you don't know what a frivolous argument is.

[SimonP]

A good lawyer starts the analysis with an awareness of where the client wants to end up, but doesn't manufacture novel theories or attenuated rationales to get there. There's a zone of what's clear, what's reasonably defensible, and what's "aggressive" - maybe what you want to hear, but not easy to support.

Moreover, lawyers are officers of the court. They represent you, but they have a deeper obligation to the court to be truthful, not to participate in your lawbreaking, to make good faith arguments based in a competent understanding of the law, etc. The sort of lawyer you seem to want is someone like Rudy Giuliani or Sidney Powell - willing to make the most extraordinary arguments on the apparent belief that no one will dare censure them. We'll see how that turns out for them.

[Rev. Arthur L. Kirkland]

Sidney Powell, Rudy Giuliani, and the rest of Trump Election Litigation: Elite Strike Force are the (only) lawyers for you, QuantumBoxCat!

[Bored Lawyer]

Can we fricking get away from this dishonest, unscholarly, disingenuous, anti-intellectual notion that any political issue of the moment has to be barred by the constitution?

Agreed. Too bad that is not broadly applied. Abortion and same-sex marriage spring to mind. But those horses have left the barn.

[Josh R]

You may not agree with it, but the argument that gays were being discriminated against when they were denied the ability to enter in civil marriage is far, far, far more plausible than this court packing argument.

[SimonP]

Or an individual right to bear arms, or the claim that states are entitled to a kind of "equal dignity," or the notion that classifying different speakers can trigger strict scrutiny for First Amendment purposes, or a broad exemption from facially neutral and generally applicable law for religious practices, etc.

I get that misogynistic homophobes can't get their smooth brains around the idea that access to abortion implicates important liberty interests and that gays have every right to engage in sodomy that straights do. And I can also appreciate how it's hard to see those rights enshrined in our Constitution.

So perhaps it's easier to focus on the more basic concepts on which those specific rights are based, which is a fundamental right to personal privacy and bodily autonomy that was "discovered" in the constitutional "penumbra." Exactly the same kind of hand-waving that got us those privacy rights also got us an individualized right to bear arms. Why are you so eager to renounce that basic set of fundamental liberties, which inures to the benefit of all? You can't really get rid of those bugaboo rights without seriously undermining your own access to birth control, your right to engage in pre/non-marital sex, your right to have sex with a partner not of your own race, your right to marry a partner of your choosing, and so on - to say nothing of other conceivable constitutional protections you might someday wish to have, such as an absolute autonomy to determine your own medical care, have a doctor assist you in committing a peaceful suicide on your own terms, and so on.

[SKofNJ]

SimonP: Wanting things does not make them constitutional.

[Brett Bellmore]

I agree. Seems like totally motivated reasoning to me.

Reducing the Court's size would be unconstitutional, as are all these schemes for forcing existing Justices to take senior status or otherwise be sidelined. But increasing the size is pretty unambiguously constitutional, though a really, really bad idea.

The Constitution doesn't save us from all, or even most, really bad ideas. And the people who want to claim it does are really trying to 'save' us from the Constitution itself.

[Brett Bellmore]

OK, I should say, reducing it's size other than by attrition.

[The Turtle Dove]

Also, there's nothing in the Federal Constitution requiring the Separation of Powers. Three vests don't make a straitjacket.

Finding something unconstitutional on SOP grounds is like calling a runner out because they should be the runner, and not the fielder, and for some reason, they've wandered out into left field. SOP is the grounding of the rule, not the rule itself.

Mr. D.

[Brett Bellmore]

What requires separation of powers in the Constitution is just the fact that the Constitution says which branch gets which powers. If the Constitution says the Legislative branch gets a power, it wasn't given to the Executive branch.

Non-delegation is a bit more tricky, but separation of powers is just that simple.

[Josh R]

NFIB provides little support for the argument. There wasn't a rationale for why it wasn't proper that drew five votes and neither rationale relied on separation of powers. And best of all, we should be spared from the "it's unprecedented" argument this time around.

[Eric VonSalzen]

If Congress increases the size of the Supreme Court to 15, and someone brings suit claiming that this action was unconstitutional, how many justices get to vote on that issue?

[Martinned]

Ex parte Levitt was per curiam, but officially Hugo Black was not recused, so he must have voted in some sense.

https://en.wikipedia.org/wiki/Ex_parte_Levitt

(Incidentally, that precedent also shows the problem of figuring out who could bring the suit you're contemplating.)

[Archibald Tuttle]

Even though the Judiciary Act of 1869 sets the number of justices, it isn't in the Constitution. What would happen if the President nominated more candidates, and the Senate confirmed them? Would they be seated at the court despite the Judiciary Act of 1869?

[Martinned]

They literally and legally wouldn't have anywhere to sit.

[Rev. Arthur L. Kirkland]

This may be the start of the ‘lamentations of their women’ period with respect to Court enlargement.

If conservatives had persuasive arguments in this context, we likely would have heard them by now. Instead, this daft whimpering. Get the votes to stop it or get ready to experience it.

[ReaderY]

Disagree. I think it would be very unwise to pack the court. But it is within Congress’ power to set the number of Justices.

Moreover. The Court has assumed far more power than the Framers ever envisioned, and today it takes for granted that it is its role to decide most important social questions, and that if its members feel strongly aboit something, that feeling is a constitutional feeling.

The threat to pack the court acts as a check on its getting too far out of hand.

[Stephen Lathrop]

I thought Dan Schmutter must be some ignorant New York Post guy. Turns out he holds himself out as a constitutional expert.

Add Schmutter to the considerable list of legal experts tripped up by misunderstanding the antique meaning of, "Proper." In founding era constitutional context it has nothing to do with propriety. And, as Marshall said explicitly, the Necessary and Proper clause is not a limitation on the powers of Congress, but an expansion of them.

"Proper," in constitutional context signifies that a means must be reasonably chosen to actually accomplish a constitutionally legitimate end. It is not that word, but other less-ambiguous language which controls the propriety of a means, and makes it unsuitable in some instances. In Marshall's famous terms:

Should congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the decree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.

Of course, Schmutter, if he cared nothing for Marshall, might wish to assert that court enlargement is not, ". . . really calculated to effect any of the objects intrusted to the government . . ." but that does not seem to have been his argument. And a good thing, too. Because it would be absurd to insist that setting the number of justices on the Supreme Court is either, "prohibited," or is not, ". . . really calculated to effect any of the objects intrusted to the government . . ."

Nope. What Schmutter plainly wants the court to do is, ". . . pass the line which circumscribes the judicial department, and to tread on legislative ground."

The most remarkable part of the thread is EV's willingness to entertain it in the first place. Is it possible that even EV does not understand, "Proper," in Constitutional context? I get that he says he is skeptical, but he does not call out the misuse of, "Proper." The issue comes up so often that EV really should point it out as a mistake when it happens.

[David Nieporent]

Do you ever rely on anything but your own personal sense of the importance of one quote from John Marshall for understanding the Constitution?

[David Nieporent]

To be clear, I think Schmutter's argument is wrong. Silly, even. But John Marshall announcing that the N&P clause was basically a "ignore what we previously said and just do anything you want" provision of the constitution does not actually resolve all constitutional questions.

[Stephen Lathrop]

Nieporent, I return to that quote repeatedly, because ignorance of it comes up so often. Of course, that does not include you. You understand it perfectly well, but wish it had never been written. Too bad. It remains one of the keystones of American constitutionalism.

But you do mischaracterize Marshall. Probably you don't like the notion that many powers of congress are intended to be plenary. Small government libertarians hate it when they realize they can't reasonably block any and every government action with an all purpose, "What's the limit?" question from some libertarian judge—meaning, of course, "Tell me a limit short of accomplishing the legitimate constitutional purpose, or I will decide against you." Take that away, and libertarians would have to win at politics, and they fear that is hopeless.

[apedad]

"But I thought this was an interesting argument, and worth passing along."

Yeah...no.

The size of the SC is determined by Congress and therefore is a political question.

Additionally, perhaps Mr. Schmutter should re-review the Constitution to see the Court does not have the authority to review what's Proper (which falls under Congress and therefore is - again - a political question).

Mr. Schmutter is just whining, which is never interesting.

[LawTalkingGuy]

Calling this interesting gives it a credibility it does not deserve.

[Angammus]

Yeah, but VC has become another right-wing fever swamp. I couldn't believe my eyes when I popped back in for a visit yesterday and today. This used to be the best legal blog on the planet for anyone who cared about civil liberties-type issues. Now look at it.

[MaddogEngineer]

I can't believe there is an entire reader comment discussion about the size of the U.S. Supreme Court without anyone mentioning that the number of justices was originally tied to riding the circuit courts. Until after the Civil War when circuit riding was abolished.

It's ridiculous to suggest that the Constitution in any way restricts Congress changing that, beyond the special case of attrition contraction (good behavior) already mentioned and adjudicated.

[Jordan Brown]

In my mind the big problem is that it's just stupid. Party A is in power today, and doesn't like the current balance, and so expands the Court. Then Party B comes into power, and doesn't like the current balance, and so expands the Court. There's no end to that sequence.

[wnoise]

The argument boils down to the entirely generalizable "things I don't like don't count as 'proper'". "Necessary" at least has some arguments that can be grounded in the real world.

[Dick King]

If the advocates of enlarging the Supreme Court believed that the court was too small to do what they needed to do, they would be willing to pass a Court resizing law that would take effect four or five years after the bill is signed to law.

-dk