Court Packing is Unconstitutional

A law changing the number of justices to affect the Court's decisions is neither necessary nor proper

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Today, the Presidential Commission on the Supreme Court holds its second full day of hearings, beginning at 8:30am this morning. You can watch it live here. At 3:30pm, I will be the first witness on a panel devoted specifically to partisan court expansion, known pejoratively as "court packing." My position is that expanding the number of judges to change the rulings of the Court is not just a bad idea; it is also unconstitutional. To make a 5 minute opening statement, I needed to greatly compress my written remarks. So, before making up your mind on the merits of this contention, I urge you to review my written testimony here. There, I not only present the support for this claim, but consider objections to it and describe how the direction of the Supreme Court is supposed to be changed.

What follows is my brief oral statement. But first a cautionary note: Just because you can think of objections to the claim that partisan court expansion is unconstitutional, does not mean it is wrong. There are two sides to every constitutional argument. There are always objections to be made against any constitutional claim. The question is how plausible this argument will seem to others who may disagree with you. Constitutional law professors are often too quick to deride arguments which they find unpersuasive (but others do not).  As a group, they've been wrong before.

Here now is my 5 minute summary:

I thank the Commission for this opportunity to offer my thoughts on proposals to expand the number of Supreme Court justices. I agree with Professors Noah Feldman and Michael McConnell that any such proposal would end the Court's independence, destroy it as a protector of our rights and liberties, and greatly increase partisan polarization. To their policy arguments, I will add one more: partisan court packing is also unconstitutional.

To appreciate the constitutional problem, we first need to locate the power that Congress is exercising when it sets the number of justices. It is the Necessary and Proper Clause, which empowers Congress to make a law that is necessary and proper to carry into execution the judicial power that Article III vests in the judicial department.

Article III does not specify the size of the Court, but for the past one hundred and fifty-two years, a nine-member Supreme Court has become an entrenched constitutional norm. To change the Norm of Nine, Congress needs to pass a new law. According to the letter of the Constitution, any such law must be both "necessary" and "proper."

In his opinion as Treasury Secretary on the constitutionality of a national bank, Alexander Hamilton offered the following test of a law's necessity: "The relation between the measure and the end; between the nature of the mean employed toward the execution of a power, and the object of that power must be the criterion of constitutionality." Today, we call this the requirement of means-end fit. A law must have an appropriate "end" or "object" and "the means" it adopts must be sufficiently related to that end.

In McCulloch v. Maryland, Chief Justice John Marshall elaborated on this test when he wrote,

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.

Of utmost importance is this how Marshall's rule of construction starts: "Let the end be legitimate…." Having set the number of justices, Congress may not then enact a law to change that number for the illegitimate end of affecting how the Court rules. That such an end is illegitimate is evidenced by the rationales for court expansion offered by FDR in the 1930s and by House Democrats today. These rationales are mere pretexts for the illegitimate end of changing how the Court rules in particular cases.

In McCulloch, John Marshall affirmed that a law based on pretextual reasons was unconstitutional. He wrote:

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…to say that such an act was not the law of the land.

While Congress has the constitutional duty to staff the Supreme Court with multiple justices, it is improper for Congress to use its power to set the number of justices for the end of affecting the decisions of the Court.

There is a proper political means to affect or change how the justices exercise their power: an elected president may nominate judges based on their judicial philosophy and an elected Senate may confirm or reject nominees on that same basis. But, once selected, these justices are to be independent of the political actors who selected and confirmed them. Partisan court packing is the illegitimate effort to interfere with this independence. Also illegitimate is the threat of court packing.

Suppose Congress passes a law stating that, if the Supreme Court overturns Roe v. Wade in the pending case of Dobbs v. Jackson Women's Health Organization, there shall be created three new Supreme Court justice positions which can be filled immediately by President Biden. If your theory of Congress's power to set the number of judges cannot say why such a law is unconstitutional, there is something wrong with your theory.

But wait, there's more. In addition to being necessary, the Necessary and Proper Clause requires laws to be "proper." In NFIB v. Sebelius, Chief Justice Roberts wrote: "laws that undermine the structure of government established by the Constitution" are not "consist[ent] with the letter and spirit of the constitution," and therefore are not a "proper [means] for carrying into Execution" Congress's enumerated powers. Undermining the structure of government established by the Constitution is exactly what partisan court packing does. For this reason, it is not a proper exercise of Congress's power.

To sum up: Partisan court expansion is unconstitutional because it is neither necessary to the accomplishment of a legitimate legislative end nor proper insofar as it undermines our system of separation of powers and the independence of the judiciary.

In 1937, the Democrat-controlled Senate Judiciary Committee issued a report on FDR's court packing scheme. Let me conclude my remarks with their closing words:

Under the form of the Constitution it seeks to do that which is unconstitutional.

Its ultimate operation would be to make this Government one of men rather than one of law, and its practical operation would be to make the Constitution what the executive or legislative branches of the Government choose to say it is—an interpretation to be changed with each change of administration.

It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.

NEXT: Today in Supreme Court History: July 20, 1990

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  1. Sounds about right.

    1. Except it’s not.

      1. Indeed! court-packing is NOT unconstitutional per se (as the court’s size is not established by the Constitution), but it probably is unwise

        1. Court-packing is not constitutionally authorized. No textual support, no power.

          1. Then every seat after the judiciary act of 1789 is unconstitutional.

        2. I find the argument substantially more convincing than Roe V Wade, which made up a right whole cloth with substantially less basis.

          The part that convinces me is that there obviously needs to be a limitation. Some boundary that crossing is illegal. Explicitly doing it because you dislike the justice’s rulings has to fall on that side of the line.

          On the other hand, there have to be legitimate reasons that changing the number of justices would be constitutional. For example, if there was a desire to have the Supremes rule on a far greater number of cases, and 13 justices would spread the workload (bad idea, I know, but I’m struggling to come up with something).

          1. “Explicitly doing it because you dislike the justice’s rulings has to fall on that side of the line.”

            Why? I mean if the Court is consistently wrong, why can’t Congress remedy that? For example, why couldn’t a Congress add seats to the Court because the Slaughterhouse Cases, Civil Rights Cases, and Plessy completely butchered the Fourteenth Amendment?

            1. Because then the judiciary isn’t an independent check on the power of the other branches. Congress can’t remedy the court, because that’s not a legitimate aim of Congress. They aren’t independent if they’re subservient to Congress.

              1. That’s weird because Article III, in addition to giving Congress the power to constitute the Courts even allows Congress to strip jurisdiction entirely. Theoretically they can 1) eliminate all lower federal courts and 2) deprive the Court of its appellate jurisdiction over state state supreme courts under the exceptions clause. Then it would only be able to hear the few original jurisdiction cases that are listed.

                If it’s allowed to do that, it would be weird to think Congress couldn’t add a few seats since there is zero constitutional reason it has to be stuck at nine seats that were settled on in the 1860s.

        3. Literally the entire point of this article is to demonstrate why you’re wrong. Your counterpoint can’t just be “No, I’m right!” if you want to be taken seriously.

          1. I’m just a poster on a blog; I don’t need to be taken seriously. Barnett is apparently a serious scholar who needs to be taken seriously for career purposes. And if this is his attempt at a serious constitutional argument, as a self-professed originalist, that there has always been some imaginary “no partisan games with the courts” limitation implied from the necessary and proper clause on Congress’s authority under Article III, then he’s the one with the being taken seriously problem.

      2. Indeed, I understand. You’d like the ability to pack the court to overrule any “inconvenient” choice the SCOTUS may take and overrule it.

        Alas, such an ability would not be proper or necessary. Hence, unconstititutional.

        1. “Alas, such an ability would not be proper or necessary. Hence, unconstitutional.”

          He’s completely making up a “partisan political advantage” limitation that simply doesn’t exist in the text or history of the necessary and proper clause, and if it did, it is not apparent that that limitation would only apply to Congress’s ability to create the Courts. For an originalist that’s completely ridiculous given that 1) the current partisan political party system hadn’t developed at the time the clause was drafted 2) judges and justices routinely engaged in political activity and the founding era politicians recognized the political dimensions of the courts.

          1. It’s not a “partisan political advantage”, but a “separation of powers” that is deliberately engineered into the US Constitution.

            The US constitution is deliberately engineered to separate powers between the Congress, Executive Branch, and Judicial Branch, in order to prevent any one branch from dictatorial powers. A “go around” which effectively neuters the Judicial branch, by allowing it to “pack” the SCOTUS is neither necessary, nor proper, and destroys the entire conception of the Constitution as a Separation of Powers.

            1. That’s not compelled by the text or any understanding of the Constitution that has ever existed since the drafting until about the time Randy made this post.

              As for the structural issues it actually gives the least accountable branch, the Court, the most power and puts it in a privileged position at the expense of the elected ones.

              For instance Congress could decide that it is necessary to expand the court because we have a greater population, more cases are being filed but its taking less and less, it lacks diversity in legal background, etc. But then the Court could just decide on its own that that it isn’t necessary and proper to do that, no matter how good or popular Congress’s reasons are. This would result in 9 (actually 5) people with no electoral accountability get the final word on whether they should have their individual power diminished even slightly.

              Moreover, they get to decide what Congress’s powers are in other areas and can knee-cap them with no remedy from Congress.

              Now you might say “pass an amendment.” But why should that heavy lift be required if the Court keeps misconstruing constitutional language anyway. Take the fourteenth amendment: the court in the 19th and early 20th century completely botched it. It would have been better if it was expanded and they got judges who got it right instead of a lost ninety years in terms of civil rights. Because an amendment wasn’t going to be passed in the South nor would it have been clear a non-expanded court would interpret it faithfully given how they butchered it the first time.

              1. Really? Mr. Barnett cites several post-founding sources (not least of which chief justice Marshall), including a rebuke to FDR’s attempt to pack the court in the 30s. His understanding matches the understanding for apparently (and at least) ~150ish years of the constitution’s history, with no evidence to the contrary.

                If you think his understanding lacks historical basis, disprove his sources and provide sources to the contrary.

                1. He cites three. None of which have taken this position. He takes the broadest possible language from Marshall, which is almost a meaningless definition “necessary and proper” needs to have legitimate ends that tells us next to nothing about the scope of the clause. Then he decides, with zero historical support that, political reasons aren’t “legitimate” despite overwhelming historical evidence that court structure had always been a political football. Finally he throws in some political attacks about FDR.

                  That’s it. It’s neither overwhelming nor particularly convincing and flies in the face of all the historical evidence that exists.

              2. “That’s not compelled by the text or any understanding of the Constitution that has ever existed”

                The Federalist Papers go quite into depth into the separation of powers, why it was done, how it was generated, and so on. If you want an understanding, start there.

                1. Weird how despite all the stuff about separation of powers in The Federalist Papers (a political spin project by politicians) and how lots of political acts were viewed on constitutional terms, no one in the early Republic ever viewed the necessary and proper clause as a limitation on Congress’s power to constitute the courts, nor generally believed there were limitations on structuring the judiciary for political ends.

    2. I’m against court packing but I find the consitutional argument here very dubious Congress can decide on the size of the Supreme Court and has in fact changed the size of the Court for political reasons several times. https://www.alternatehistory.com/forum/threads/wi-fdr-was-a-fascist.465586/page-2#post-18871561

  2. To be Necessary and Proper, it has to “legitimate.”

    What is “legitimate” is a political question.

    So whatever Congress does is legitimate.

    So if Congress sets the number of seats at (11, 13, 99), then it’s legitimate and therefore Necessary and Proper.

    Case closed.

    1. You skipped a few steps in your summary, which is about right for a court packer.

    2. “What is “legitimate” is a political question.”

      Who says?

      1. I don’t like the doctrine, but it sure does exist in is-land.

        Federal courts are barred from hearing cases which deal directly with issues that the Constitution makes the sole responsibility of on of it’s coordinate branches.

        Barging in and declaring a coordinate branch’s action in exercising it’s responsibility is illegitimate is within that limit.

        1. I know what the political question doctrine is. Not every power is a political question though.

          1. I suppose you could argue a congruence and proportionality test for the 14th, but for the Article granted powers, I don’t know if I can think of an example of the judiciary having a say since Goldwater v. Carter.
            Every power that Congress grants only to one or both of the coordinate branches is a political question. No special pleading for setting up the judiciary.

            1. Tax power is solely granted to Congress. Political question?

              1. So is the power to coin money solely granted to Congress. But money stopped being “coins” backed by gold or silver a long time ago. Since the Federal Reserve prints money, which is solely within the purview of Congress, one wonders whether the Federal Reserve structure is constitutional.

                1. I don’t wonder. It is.

                  Delegation of congressional powers to a semi-private entity not subject to congressional appropriation procedures and outside of the executive control of the President.

              2. Yeah, it is.

                But that wasn’t the question presented in the ACA case, if that’s what you are thinking about.

    3. 1. All things that are “Necessary and Proper” are “legitimate”. It does not automatically follow, however, that all things “legitimate” are “Necessary and Proper”.

      2. “Legitimate” is not merely a political question.

      With not one but two logical fallacies in the construction of your argument, it’s no surprise that your conclusion is equally false.

    4. That is quite the circular argument

      1. I am reminded of Nixon’s famous quote. “When the president does it, it’s not illegal”.

        That isn’t a good reference.

  3. Perhaps, but if 9 justices declare the law appointing an additional 6 unconstitutional, and refuses to seat them, I think it will look self serving and would lead to a constitutional crisis. More likely the vote would be 8-1 or 6-3, not unanimous, even worse.

    Half the country will say that the additional 6 are legitimate, the other half wont accept them.

    These days though I tend to think that the Marxists on the left and the White Supremacists on the right really want to provoke a crisis.

    1. If ruling upending thousands of years of Western tradition that a man has a right to get a “marriage” license to celebrate that he likes to shoot off in another man’s anus didn’t provoke a constitutional crisis, nothing would.

      1. I think “tucchus” would’ve worked better here.

  4. Randy Barnett and Erwin Chemirinsky walk into a bar. They get drunk. They make s**t up. They call it constitutional argument.

    1. People on this blog seem to constantly conflate “making an argument” with “winning an argument in front of appellate judges.” High powered DOJ, Solicitor General, and private sector lawyers make a lot of arguments. Some times they win, sometimes they lose.

      Barnett is making an argument, and he warns us “There are two sides to every constitutional argument. ”

      I would have said “There are at least two sides to every constitutional argument, ” because by “side” I associate not just a judgement, but the analysis that lead to the judgement. We see this in a lot of appellate decisions “I concur in judgement but for different reasons.”

      Barnett here is making an argument. Is it a winning one? Hard to say. One thing I am 100% certain of is that its foolish to underestimate the power of Barnett to persuade judges and justices.

      1. It’s barely an argument, though. It’s basically handwaving.

        I maintain court packing is a bad idea, but not unconstitutional.

      2. ” One thing I am 100% certain of is that its foolish to underestimate the power of Barnett to persuade judges and justices. ”

        I would expect to learn that Prof. Barnett won a few while operating as a prosecutor, but some people — Angel Raich, those who sought to scuttle Obamacare — might regret reliance on Prof. Barnett’s persuasiveness. How many important cases has Prof. Barnett won?

      3. For some constitutional arguments, there aren’t two (or more) sides. What is the constitutional argument for giving California and New York and Texas and Florida more Senators than Wyoming or either of the Dakotas? What is the constitutional argument for swearing in a 27 year-old as a Senator? What is the constitutional argument for Arnold Schwarzenegger’s or Jennifer Granholm’s eligibility for the Presidency?

        1. You do know what “at least” means, correct?

          1. Yes. I do, And as my examples show, “at least two” is wrong.

    2. This.

      There’s unbroken historical precedent that Congress can set the size of the Supreme Court. It was done several times in the 18th and 19th Century. Even when FDR’s court packing scheme was rejected in the 1930’s, everyone in that debate conceded the constitutional power was there- it was rejected as bad policy.

      And you don’t even get to “necessary and proper”. The power is in Article III. It would still be in Article III even if there was no necessary and proper clause. Article III requires a Supreme Court and leaves all other questions of the composition of the judiciary to Congress. That includes setting the number of justices.

      And further, even if we reached “necessary and proper”, Barnett’s definition of “improper” is “everything that contradicts my political beliefs”.

      It is disgusting that he would vomit this out and call it scholarship.

      1. They’re desperate. Disaffected. Defeated.

        Expect more of this.

      2. Wake, didn’t you leftists claim the entire time Trump was in office that an otherwise legitimate government action could be made illegitimate if done for the wrong reasons?

        1. Perhaps you could take a break from musing about anal sex and draw a distinction between (1) a pretextual action in which the real reason would violate a constitutional prohibition and (2) a pretextual action in which the real reason would violate Randy Barnett’s sensibilities.

      3. I mean his entire schtick is lending detached scholarly legitimacy to political projects.

  5. You know, I’d like it if the requirement that laws be necessary AND proper had actual teeth. But even a N&P clause with teeth wouldn’t render a Court expansion unconstitutional just because the motive was bad.

    Congress actually IS entitled to set the size of the Court, that’s transparently clear. This wouldn’t be a case of them setting out to exercise a power they deliberately weren’t delegated, under the pretense that doing so was ‘necessary’ to exercise an enumerated power. It’s a direct exercise of an enumerated power.

    Seriously, you’re morphing into a living constitutionalist, right in front of our eyes.

    1. IDK, I think its a closer call than that. If Congress packs the court to effect legislative changes and overturn SC decisions, that seems to violate the spirit of separation of powers.

      But, if Congress gets rid of the filibuster to pack the court, they can also get rid of it to pass laws that directly undermine SC decisions. Passing laws that overturn SC decisions would be constitutional in many if not most cases, given that a lot of SC decisions turn on statutory interpretation. It’s within Congress’ power to redefine statues.

      Very likely, the SC would be deferential to such laws.

      The real argument against packing the court is not (un)constitutionality, the real argument is partisan nuclear war and mutually assured destruction.

      1. I agree with that last.

        Last year’s ad hoc changes to election administration came perilously close to breaking our democracy. Packing the Court would finish the job.

        Maybe not packing the Court itself, but all the legislation packing the Court would be meant to clear the path for.

        Packing the Court is NOT something you’d ever do in isolation. The political cost of doing it is just too high to do it for trivial reasons. You’d only do it because you had a legislative program you absolutely knew would not survive judicial scrutiny, so you wanted the Court to become a rubber stamp, if not an active collaborator.

        And since any fool can see that packing the Court would set off a cycle of tit for tat, it seems inevitable that part of that legislative program would be some kind of serious political entrenchment meant to assure that the opposing party would never, ever, find itself in a position to return the favor.

        To anybody who has thought this through, Court packing amounts to an open announcement that you intend to render the country a one party state, turn elections into a farce. The implications of trying it are horrifying.

        1. Just to be clear about “breaking our democracy” I think the situation is quite the opposite. I would have more accurately said “breaking our republic.” The leftists rule in population dense areas, and would be perfectly happy with a true democracy where everything is run between the population centers of LA County and NYC.

          What they don’t like is that the flyover counties get a veto/say in legislation because places like Wyoming are afforded far greater legislative weight than their population would imply – because those flyover places are conservative.

          1. There are entirely legitimate ways to diminish our system’s structural amplification of backwater votes and voices. End the filibuster. Enlarge the House of Representatives (and, with it, the Supreme Court). Admit new states. Enlarge the Supreme Court.

            Would clingers claim it to be improper, for example, to enlarge the House in a manner that restored the amplification of small states’ influence at the Electoral College to, say, the levels experienced during the 1950s . . . or the 1970s?

            These are losing arguments by flailing losers.

            1. I’d have no problem at all with enlarging the House. It would have certain operational issues that would have to be dealt with, such as turning the current House chambers into a museum, and having the House meet electronically, but those could be dealt with.

              You do realize that enlarging the House substantially would basically doom the Democratic party to never again controlling that chamber of Congress, right?

              1. “You do realize that enlarging the House substantially would basically doom the Democratic party to never again controlling that chamber of Congress, right?”

                Curious…I’m sure models have been created.

                Is there a link somewhere to show this?

                1. I have seen forecasts along this line. The ones I saw do not support Brett Bellmore’s position.

                  1. The forecasts that don’t show that tend to assume some sort of PR or gerrymandering to compensate.

                    Not that Democrats typically admit that drawing districts to help them is gerrymandering, of course.

                2. Democrats suffer from a substantial geographical disadvantage in a single member, first past the post system: Their voters are “inefficiently” distributed. You have a large part of your voting base located in precincts where you aren’t merely the majority, but an overwhelming majority.

                  Large districts tend to compensate, because on the edges they mix your dense urban districts with suburban districts that you lose by a more modest margin, reducing the inefficiency. Shrink the districts, and you throw the disadvantage into sharper focus. More of the district would be interior to dense urban areas, rather than mixing them with the surrounding country.

                  Right now the House is pretty close to split down the middle. Enhance that disadvantage, and Democrats would suffer badly.

                  1. Probably not. House districts would have to be reapportioned in such a way that each district represented the same number of people. Dense urban areas would get additional districts, since they have more people. The districts themselves would be geographically much smaller.

                    Imagine as a thought experiment we doubled the size of the House. Each district would (to a first approximation) get divided in half, so each Congress critter represented ~400k people instead of the ~800k now. . So there would be two AOCs, but also two Marjorie Green’s. They could gerrymander the new districts, but each of the new ones would have to represent the same number of people. Since AOC’s district is 81% stupid, each of the two new ones would be similarly stupid.

                    I think that the net effect of additional house members is a wash.

                    There would be less ability to gerrymander smaller districts, but thats about it.

                    If I were writing a constitutional amendment to change the house system, I would totally ditch the geographic system. I would make all members at-large. Anyone could “sign” e.g. vote for any representative (but only one) on a first come-first-served basis. More like the way you retain a lawyer, people would retain an actual House representative. It would be first-come first served, so House members could only represent X number of voters, but it would be far more efficient. I could sign up with any representative who aligned with my views, for two+ years, no matter where I lived.

                    1. The geographic representation system is a relic of a time when people were relatively immobile.

                    2. “The geographic representation system is a relic of a time when people were relatively immobile.”

                      Mobility has increased a great deal, but not as much as you think. The average person still lives and dies within something like 50 miles of their place of birth.

                    3. Your thought experiment fails to take into account the very issue I was highlighting: Asymmetric distribution of voters.

                      The majority of Democrats live in precincts with a very high percentage of Democrats. The majority of Republicans live in precincts with just a modest majority of Republicans.

                      When you have a small number of districts, a substantial percentage of them must inevitably bridge the divide, taking in areas where Democrats dominate, and Republicans weakly dominate. The result is that urban centers tend to be surrounded by districts that mix highly Democratic precincts with modestly Republican ones, to produce a mix that more efficiently represents the Democrats.

                      Reduce the population of the districts, and the proportion of “bridging” districts declines, bringing the Democratic vote inefficiency into clearer focus.

                      You can’t properly analyze this without taking into account that Democrats and Republicans are NOT distributed in the same way.

                    4. Dwb, that’s not exactly true.
                      Americans aren’t as mobile as you think. Sure, more than 10% of Americans move each year – and almost 85% of those moves are 50 miles or less. About 75% of Americans have never lived outside their birth region.

        2. The left has already announced it intends to render the country a one party state, by importing tens of millions of illiterate third worlders.

      2. Tell me how a sock puppet President controlled by the left side of the legislature fits in the separation of powers.
        Usually the same party president keeps the legislature a little bit in check trying to get re-elected. Not this time.

        1. Ahh yes, the ‘cooperates with liberals too much to be President’ doctrine.

    2. So what’s your answer to Prof Barnett’s hypothetical about a law changing the court size explicitly dependent on the conditional outcome of a single case?

      I was skeptical of the argument until I ran up against that hypothetical. Are you saying that such a law would be constitutional? Because I don’t think that’s right. And if the hypothetical must be rejected, that introduces other assessments of motive into judicial review.

      1. Such a law would violate Article III. The judicial power has to stay in the hands of one Supreme Court and such lower courts as Congress might create.

        OTOH implicit threats (FDR) are perfectly legal.

        1. I’ll dissent. This law would be terrible, but constitutional. Congress cannot legislate the outcome of a specific case. Congress cannot cut the salaries of justices (or judges generally) to punish them for the way they rule. But Congress can say “If you rule this way, we’re going to add justices to the Court.”

          1. I dunno – if a conditional waiver of 1A rights is unconstitutional, a conditional waiver of Article III powers sure would be.

          2. Except that is basically IS Congress legislating the outcome of a case. “Rule this way or else we will add justices who will rule this way”

            1. No, it wouldn’t be legislating the outcome of the case. The new justices would be appointed after the case was over and the outcome already determined. Moreover, there is no guarantee as to how those new justices would rule on a similar issue in the future.

              When I said legislating the outcome of a case, I meant literally that: “The Supreme Court shall rule in favor of IBM in IBM vs. Smith,” or even more directly, “IBM is hereby declared to win its lawsuit in IBM vs. Smith.”

          3. I think Congress can say that, but I don’t think they can pass a law prior to the case, which only takes effect afterwards depending on the outcome. Such a law would be interpreted by the Court as an unconstitutional command to a coequal branch.

            Mind, a lot would depend on how the new ‘justices’ reacted to how they’d gained their new positions. It could be quite a crisis if the old Court ruled the law unconstitutional, and the new upheld it.

          4. Bank Markazi v. Peterson gets pretty close to saying Congress can legislate the outcome of a case without actually saying that.

            1. Yeah, but not a constitutional case.

              Congress might (we don’t really know) be able to pass a law that in Smith v. Jones, Smith wins, but it can’t say that in Roe v. Wade, Wade wins.

    3. “Seriously, you’re morphing into a living constitutionalist, right in front of our eyes.”

      Following Randy on Twitter destroyed my ability to take his arguments seriously. He’s a shameless partisan hack.

  6. [Court packing] is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.

    And yet, here we are.

    “Those who do not learn from history are condemned to repeat it” is supposed to be a warning, not a road map for the future power hungry.

  7. If “necessary and proper” restricts Congress’s power to expand (or shrink) the Court, it doesn’t apply to Congress’s power to create (or eliminate) any lower court. That power (art. III, sec. 1) is not given any limitation.

    Congress can simply abolish all lower courts, unless conservative Justices retire.

    1. Congress already once abolished all the courts of appeals because they had too many of the wrong kinds of judges….

      (And nobody at the time argued that that might be unconstitutional because not proper. The argument was only about security of tenure.)

    2. “Congress can simply abolish all lower courts”

      Yes!!

  8. Tony K’s “animus” argument expanded.

    1. Which was recently repudiated with in the Muslim ban case, if you may recall.

  9. Mitch McConnell preventing a vote with respect to a Supreme Court nominee for overt political reasons is constitutional; another senator voting to enlarge (or diminish the size of) the Court for similar political reasons is unconstitutional.

    The point of distinction appears to be whether the action flatters those who prefer bigotry to tolerance; superstition to reason; backwardness to progress; dogma to science; ignorance to education; insularity to inclusiveness; and the like.

    Do right-wing legal academics genuinely expect to be taken seriously in modern America, by reasoning, educated, mainstream Americans?

    Also, can anyone recommend a blog that might provide a libertarian perspective on issues such as this one?

  10. In NFIB v. Sebelius, Chief Justice Roberts wrote: “laws that undermine the structure of government established by the Constitution” are not “consist[ent] with the letter and spirit of the constitution,” and therefore are not a “proper [means] for carrying into Execution”

    I had not known that Chief Justice Roberts had so completely—and yet so vaguely—redefined Chief Justice John Marshall’s interpretation of, “Proper,” in the Necessary and Proper clause. Read Marshall on the Necessary and Proper clause and you cannot possibly come away with the conclusion he thinks, “Proper,” is meant to refer to anything to do with propriety, or with conformance to norms, or the structure of the constitution, or with any other such vague baloney.

    Marshall interpreted, “Proper,” in its common sense of his own era, to mean something like, “suited to the purpose,” or “capable of getting the job done.” An example of that kind of use would be, “A proper blacksmith shop.” Such a shop would be one featuring sufficient skills and equipment to assure successful completion of a job of iron work. In addition to the fact that Marshall all but defines the word that way himself, it would be utterly unlike Marshall to leave such a pivotal legal doctrine dependent on others to decide whether legislation conformed to whatever notion of, “propriety,” they happened to favor.

    Thus, “Proper,” in Marshall’s interpretation describes a choice of legislative means well suited to actually accomplish the constitutionally legitimate end it is meant to serve. I am not a lawyer, so I will not try to push this essentially originalist interpretation any farther. Anyone who doubts what I say should re-read McCulloch v. Maryland for himself.

    1. Do over:

      In NFIB v. Sebelius, Chief Justice Roberts wrote: “laws that undermine the structure of government established by the Constitution” are not “consist[ent] with the letter and spirit of the constitution,” and therefore are not a “proper [means] for carrying into Execution”

      I had not known that Chief Justice Roberts had so completely—and yet so vaguely—redefined Chief Justice John Marshall’s interpretation of, “Proper,” in the Necessary and Proper clause. Read Marshall on the Necessary and Proper clause, and you cannot possibly come away with the conclusion Marshall thought, “Proper,” was meant to refer to anything to do with propriety, or with conformance to norms, or the structure of the constitution, or with any other such vague baloney.

      Marshall interpreted, “Proper,” in its common sense of his own era, to mean something like, “suited to the purpose,” or “capable of getting the job done.” An example of that kind of use would be, “A proper blacksmith shop.” Such a shop would be one featuring sufficient skills and equipment to assure successful completion of a job of iron work. In addition to the fact that Marshall all but defines the word that way himself, it would be utterly unlike Marshall to leave such a pivotal legal doctrine dependent on others to decide whether legislation conformed to whatever notion of, “propriety,” they happened to favor.

      Thus, “Proper,” in Marshall’s interpretation describes a choice of legislative means well suited to actually accomplish the constitutionally legitimate end it is meant to serve. I am not a lawyer, so I will not try to push this essentially originalist interpretation any farther. Anyone who doubts what I say should re-read McCulloch v. Maryland for himself. For a modern reference closely adjacent to Marshall’s meaning, think, “Necessary and Sufficient.”

      1. There’s a ton of stuff wrong with this post. But Barnett is quite correct that the five Justices in Sibelius limited McCulloch v. Maryland. “Proper” now does have some teeth, and Sibelius is the governing case going forward, not McCulloch.

        We don’t know, however, what teeth it has, beyond “requiring someone to engage in commerce they do not wish to engage in is not proper”.

        1. Dilan, “Proper,” had far more teeth—and actual meaning besides—in Marshall’s interpretation. By the way, did anyone writing in Sibelius actually mention they were changing the Necessary and Proper Clause to mean something completely different, and unrelated to its generations-old meaning? If not, I suggest they were just doing typical commonplace erroneous interpretations. Present-minded lawyers untrained in history fall into those when they play at originalism. Happens all the time. This particular error is one Barnett made himself, in a post here on the VC, before Sibelius. I corrected him on it then. I have mentioned it from time to time since (and at least once before Barnett), in response to several others who made the same mistake. It’s a very popular mistake.

          Right wingers love that notion that, “Proper,” means something to do with, “propriety.” And then they get to define “propriety.” There has never been any basis for that, except maybe now, if as you say, Sibelius is it. Which would still mean that there has never been any well-reasoned basis for it. And there never will be, because, “propriety,” is not a thing anyone can turn into a durable standard.

          1. I think Marshall’s construction of “proper” was toothless. He was a national power fanatic who would have found anything “proper”. But… he may have been right.

            Nonetheless, Sibelius is now the law. And that means “proper” is a substantive requirement that apparently requires that Congress stay within the penumbras of the power.

      2. Marshall interpreted, “Proper,” in its common sense of his own era, to mean something like, “suited to the purpose,” or “capable of getting the job done.” An example of that kind of use would be, “A proper blacksmith shop.” Such a shop would be one featuring sufficient skills and equipment to assure successful completion of a job of iron work. In addition to the fact that Marshall all but defines the word that way himself, it would be utterly unlike Marshall to leave such a pivotal legal doctrine dependent on others to decide whether legislation conformed to whatever notion of, “propriety,” they happened to favor.

        Your interpretation would render “proper” superfluous. Something that isn’t “capable of getting the job done” cannot possibly be deemed “necessary.”

        1. It is similar to the mathematics term “necessary and sufficient”.

        2. Nieporent, I hesitate, you being a lawyer and all. But my sense from Marshall had been that, “Necessary” signified both a legitimate end, and a congressional determination that circumstances called for action. “Proper,” had to do not with the end, but with the means. A double-barreled requirement, but two separate evaluations:

          1. Are we allowed to pursue this goal, and if so do circumstances as we judge them require action?

          2. If we do decide to act, is our plan of action one reasonably calculated to accomplish the aim sought?

          Given legitimacy and necessity for the end sought, there is no sense in Marshall that a means is even to be evaluated in terms of necessity, only in terms of reasonable capacity to get the job done. I get that right wingers and many, many current judges want to demand that congress prove the means it chooses are necessary—and presume to substitute their own judgment on that question. I think that is overreach by the courts—and nothing to do with Marshall. Choices of means, are, of course, a principal nexus for policy, which the courts should stay out of.

          1. Marshall basically assumed that Congress would decide what things were necessary and proper for carrying their powers into effect. I actually think that’s quite likely a correct constitutional interpretation- Marshall was there at the founding, and one of the major reasons why the libertarian Articles of Confederation were rejected and federal power widely expanded was to ensure that the federal government had implied as well as express powers and could deal with any problem of national import. That’s all over the constitutional drafting and debates.

            But again, I emphasize, whatever I think the law should be, the law now is that “proper” refers to some penumbral limit on otherwise necessary exercises of power. I don’t know where that limit is- Sibelius doesn’t tell us. But Marshall’s approach is dead as a doornail.

            1. But Marshall’s approach is dead as a doornail.

              Dilan, have the justices said that? Is anyone but you saying that? I confess to feeling like the courts have been drifting in the direction you say, but I have attributed that to a vaguer kind of ideologically-driven over-reach—not to a candidly announced revolution in American constitutionalism from the bench.

              1. Sibelius applied a different approach and is a much more recent precedent. The fact that John Roberts didn’t want to explicitly overturn McCulloch doesn’t really matter, because any lower court is going to apply the Sibelius approach to the issue.

                1. Haven’t we already acknowledged that there is no, “Sibelius approach,” to apply? Under Sibelius, what is, “necessary?” What is, “proper?” The clause is still in the Constitution, and if Sibelius offers guidance on how to interpret it, what is it?

  11. I agree that court packing is immoral and would love it if your theory turns out to be true in practice.

    But suppose that Congress does enact, and the president signs, a law adding seats to the court, and then the president appoints people to fill them and Congress confirms them. At what point can SCOTUS declare those actions invalid? Does anyone have standing to bring such a case? Can SCOTUS both bring it and hear it themselves? I can’t think of a better recipe for total chaos, as the different branches of government would then accept contradictory assertions about who is a member of SCOTUS and about how SCOTUS has ruled!

    We have become a banana republic. Thanks, Fake President Biden.

  12. I wonder to some extent about divining where a particular move is made for impure reasons. This came up in the Trump travel ban cases where it was said by some that another President could have issued the same order if not for impure reasons.

    Suppose a future Congress decided to enlarge the court to provide one Justice for each Court of Appeals (13) or each Circuit(12), I believe was once the case. If congress were to reorganize the Judiciary and split the 9th circuit because it functions so differently that the other circuits and the also increase the Supreme Court?

    Would that be an improper motive? If is is who decides? Of course if the expansion were bipartisan and handled in a non-partisan way, say for example adding once justice every 2 years it might be acceptable.

    1. rsteinmetz, well, maybe acceptable except for illogical reliance on consensus among specific private political organizations as a test of constitutional legitimacy.

      Which, by the way, is a tacit feature of Barnett’s critique as well. Realistically, we all know Ds v. Rs is the name of the Washington game today, but it has not always been so, and probably will not always be so in the future. If your critique of constitutional legitimacy falls apart without over-reliance on Ds and Rs as a fixed feature of American constitutionalism, you may be doing it wrong.

      Suppose, for instance, that something about more justices inconvenienced both Ds and Rs alike, because it opened opportunity for more parties. Would anti-court-change advocates still be able to rely on arguments about retaliatory partisan warfare? Would they be different kinds of arguments? Could you find a way, for instance, in a 4-party democracy, to argue forcefully that this number of justices, or any number, ought to be sacrosanct? On what basis, absent the 2-party rivalry we habitually mis-perceive as a permanent feature of American constitutionalism?

      1. Keeping it at nine keeps a can of worms closed.

        That’s the point. It’s not a constitutional issue, it’s not even a norm, really. But we avoid all sorts of problems by not packing the Court.

        1. Dilan, that can of worms? It may be closed at the top, but it has sprung open at the bottom.

          American constitutionalism has a lot of anti-majoritarian features built in. So many anti-majoritarian features, in fact, that we ought to confine our governance to the use of just those specified, and not try to use the built-in anti-majoritarianism as a force multiplier to inflict even more anti-majoritarianism as we go along.

          Mitch Connell doesn’t get that. I suggest that if you are going to have a Senate set up on anti-majoritarian principles, it ought thereafter to cherish equality in its day-to-day operations.

          If, instead, you do what McConnell does all the time, to thwart votes, to thwart debates, to thwart impeachment evidence, to thwart consideration of presidential appointments, to announce that your principal, number-one goal is to use anti-majoritarian power to make political rivals fail, then rivals will take their opportunities for push-back where they can find them. You want comity, and lots of problems avoided? Don’t put that can under so much pressure you blow out the bottom.

          1. I don’t think the fact that politicians play around with the confirmation process is some sort of “threat to democracy” or “anti-majoritarian”.

            Meanwhile, I think actually changing the number of SCOTUS justices will cause a cycle of reprisal that will ruin the legal system.

            So this is a non-problem being “solved” by a terrible solution.

            The solution to the Democrats’ political problem with the Supreme Court is to win elections and appoint justices. Just like it was for FDR.

            1. Not just like it was for FDR. FDR was not nearly so structurally hampered by anti-majoritarian electoral college constraints as those which exist for Democrats now. In fact, as the de facto head of the segregationist political alliance, FDR was riding the crest of the anti-majoritarian wave.

              1. Joe Biden just won an election and won the Senate. Democrats can win elections. It’s not difficult, and there’s no crisis other than impatient Democrats who want to control everything RIGHT NOW and dishonestly label their short term political goals as “saving democracy”.

                There’s nothing preventing Democrats from winning the presidency and the Senate in 2022, 2024, 2026, etc., if they put up the candidates the public likes more. And then they can fill SCOTUS seats.

                1. Dilan, your political science needs an update. Sure, if Democrats can reliably win by much bigger margins than are required for Republicans to win, Democrats can keep winning. You seem to want to treat that fact as anodyne, status quo stuff. The fact is, it is already a crisis, and will likely get worse. It is over-pressurizing your can of worms.

      2. My comment was not intended to raise a political question, but rather the ethical and moral one of who decides on intent. The Constitutions was originally ratified by all of the original states. They joined willingly. The current polarization has not always been the case.

        A broad consensus of the selected representatives and the states is implicit in many features of the Constitution. For example requiring 2/3 vote of the Senate to convict on impeachment where each state is equally represented or 2/3rds of both houses to propose amendments and 3/4 of the states to ratify them.

        In fact the Constitution seems designed to prevent rapid changes without great consensus, which has only rarely been achieved, most notably during FDR’s presidency where the country faced The Great Depression and World War II.

        Even the great Civil Rights Laws of the 1960’s were enacted with broad consensus, something many people today seem to forget.

        1. “The Constitutions was originally ratified by all of the original states. They joined willingly.”

          Actually, Rhode Island joined because of a naval blockade. They were refusing to ratify until the the new federal government sent ships to close their ports. They didn’t participate in the Constitutional Convention, either.

          So, like hell they all joined willingly.

    2. Barnett’s short statement posted here doesn’t seem to fully tackle the issue you raise. If, for example, Congress passed a law reforming the Supreme Court, and the stated purpose was to address the Court’s workload, then under Barnett’s argument the Supreme Court would need to examine the legislative history to discern some latent intention. My understanding though is that legislative history is generally not part of the conservative judicial theory. The Court could certainly speculate about a “secret” partisan intention, but such an approach would render any future legislation passed along partisan lines suspect.

      In U.S. v. Union P.R. Co. (1875), Justice Davis, writing for a unanimous Court, stated: “In construing an act of Congress, we are not at liberty to recur to the views of individual members in debate, nor to consider the motives which influenced them to vote for or against its passage.” (p. 78).

      In Justin Crowe’s book, “Building the Judiciary: Law, Courts, and the Politics of Institutional Development,” he argues that the Court has historically been shaped by workload concerns and partisan motives. A major concern during the Antebellum period, which influenced the make-up of judicial circuits, was the desire to keep the Court balanced with northern and southern justices (over concern for the issue of slavery). The political issues and divisions are certainly different today, but the method of reshaping the judiciary seems an enduring aspect of our politics.

  13. If they cared about what was constitutional they’d offer amendments to change the constitution using the constitutional mechanism instead of trying to undermine it with political justices.

    1. much harder to amend then get 5 politically motivated justices to just change it.

  14. Why does the “Norm of Nine” have the force of law such that the only way to change the “Norm” is to enact a law rather than simply nominate/confirm more than nine justices?

    1. Um, because the number nine was set by a statute in the first place?

  15. Packing the Court is a terrible idea. However, I’m still unconvinced that it’s unconstitutional. It may be that court-packing is neither necessary nor proper, but at the end of the day, Congress gets to decide the necessity and propriety, and if they decide it is, then, from a legal standpoint, it is.

  16. I’ve said before – in the Chemerinsky thread – that Con Law professors seem to enjoy making up far-fetched arguments. I guess it gets them press, or TV appearances, or a reputation on their side of the aisle.

    Fine, so long as they are just writing op-eds or posting on a blog or whatnot. When they get these arguments in front of people who might act on them for their own reasons – not because they are convinced but because the arguments provide cover – the practice is not so benign.

    Having set the number of justices, Congress may not then enact a law to change that number for the illegitimate end of affecting how the Court rules. That such an end is illegitimate is evidenced by the rationales for court expansion offered by FDR in the 1930s and by House Democrats today. These rationales are mere pretexts for the illegitimate end of changing how the Court rules in particular cases.

    Huh? Because Barnett doesn’t believe the rationales given, the ends are “illegitimate?” What bogus nonsense. Even if he’s right it’s nonsense. Declare unconstitutional any bill passed by Congress which was supported by pretextual arguments and you might as well burn the statute books.

    Ridiculous.

    1. And it also harms Barnett’s profession. People assume law professors regularly spout bullcrap and as a result dismiss their expertise.

      1. “People assume law professors regularly spout bullcrap”

        An accurate assumption. Ever peruse law reviews?

        1. Many law professors actually are experts and don’t spout BS.

  17. Who is your intended audience? Are you attempting to bring a “moment of clarity” to those advocating for packing, or are you giving some pre-game coaching to the Justices, their clerks, and the legislative opposition to packing? Many of my leftist friends, even long before Trump, harmonized on a thread of impatience with the procedural rigor and structure of the system. “I’m tired of waiting”, being a common refrain. I can see many of the people you want to convince having a tin ear to the very words “necessary and proper”. When you are on a moral mission from G-d, you have cleared the “necessary” hurdle and all moves to that end are by definition proper. They don’t have a monopoly on this way of thinking, but to quote Michael Caine, let’s say they have a controlling interest of late.
    So while these same friends are more responsive to thought experiments around what the next Trump would do with the precedents they set today, maybe you could work that appeal into how N&P would be evaluated. I’m thinking about limiting principle evaluation, the adverse impact of a constantly fluctuating court size (assuming each successive legislative majority will trim and train the SCOTUS bonsai tree).
    To the point – I like that you’re talking about how N&P would be evaluated, but some of it sounds a bit too much of a “we can’t do this because of procedure for its own sake” argument. The most powerful N&P arguments to me tend to be an acknowledgement of a legitimate concern, addressing why the concern is not the crisis they think it is, and whether it is or not, why the proposed remedy is not fit for purpose – indeed why it would be abused beyond their good intentions, followed by proffering a better remedy (e.g. win more elections). There’s an idea that they only need to do it once and then let the doors on the practice shut behind them. Mentioning that things wouldn’t work this way may be helpful.
    In those opening remarks, I don’t think you need to show your work too much – just the promises inferred by your declarations will be impactful if they are perceived to follow coherent line of reasoning.
    Anyway, good luck today! Looking forward to your testimony.

  18. I would not support court packing unless they decided to create 331,449,281 additional seats.

    Of course that’s not serious; but what is the limiting principle of those who do support packing? What number is too many?

    1. One more than necessary to achieve the desired results, of course.

    2. “the limiting principle”

      Excuse me for a minute
      . . .
      [Hysterical laughing heard from the next room. Sound of furniture falling as someone rolls around are also heard.]
      . . .
      Thank you. You were saying?

  19. This strikes me as the kind of airy-fairy argument one would expect to be made by leftist law professors and rightly derided by all serious conservatives. The size of the court is obviously within Congress’s powers, or else we would just have a single-member court with a chief justice and no one else. Having accepted that proposition, do we really want to give a district judge somewhere the ability to say, “Well, I don’t think that’s a good enough reason, it’s too partisan”? And, of course, Congress will point to all sorts of good reasons for changing the Court’s size, so the district judge will have to make factual finding about why 51 senators and 218 representatives *really* wanted to change the Court’s size. And then that decision will be reviewed by the very Supreme Court whose membership is at issue in the lawsuit, which is supposedly bound by the district judge’s factual findings. Who in the world thinks that is a good idea?

    Moreover, why it is constitutionally impermissible for Congress to consider the Court’s likely rulings anyway? They do it all the time when voting to confirm or reject nominees, and no one seriously thinks they are violating the Constitution when they do so. Congress has a legitimate interest in seeing that the Constitution is followed and that its laws are properly construed. What if a majority of justices announced that they were going to rule for the Democrats in all future important cases, and there was a Republican majority in Congress but not large enough to impeach anyone? Or what if a majority of justices adopted a method of constitutional interpretation (let’s call it the “F*** Originalism, We’re in Charge” theory) that Congress felt improperly infringed on its ability to create laws that will be enforced? Why would it be illegitimate for Congress to use the powers it has been given to restore the Court to its proper role? Or, to put it another way, why is it *more* legitimate to give a district judge somewhere the ability to decide when Congress is being too “partisan” for his or her tastes? And if you think increasing the Court’s size presents a constitutional crisis, wait until Congress does so and the existing Court says, “Nah, we’re good.”

  20. Where was Professor Barnett when Senate Republicans wanted to shrink the DC Circuit to maintain their majority on that court?

    1. “Where was Professor Barnett when Senate Republicans wanted to shrink the DC Circuit to maintain their majority on that court?”

      Palming a softball-sized shrimp at a Heritage-Federalist-Republican-American Enterprise-Conservative Union-Family Research event, most likely, absorbing the game plan for thwarting the modern popular will reversing all of this damned liberal-libertarian progress.

      1. You can tell Artie is worried when he balls up his insults into stream of consciousness. 7-2

        1. “You can tell Artie is worried . . . ”

          What, in your judgment, could be inclining the recent conduct of Prof. Volokh (‘let’s have government tell private companies what they can and must publish’), Prof. Barnett (‘Supreme Court enlargement has become unconstitutional’), Prof. Blackman (pick just about anything you wish) . . . confidence about the political and cultural prospects of conservatives in modern America?

  21. Imagine calling yourself an originalist and also believing that it is unconstitutional for the political branches to take politics into account when dealing with the judiciary.

    1. Imagine calling yourself an originalist without taking into account the founding generation’s contempt for democracy?

      1. Which tells us nothing about whether anyone in that era would have understood the necessary and proper clause to be a limitation on Congress’s ability to play political games with the courts. Based on founding era practice, they likely would not have viewed it that way.*

        *Or some of them might have because like everyone else they debated the meaning of Constitutional language and made political arguments about that language to gain a political advantage.

  22. Randy Barnett is the Steven Crowder of Erwin Chemerinskys.

  23. A similar argument that I like better:

    Article III vests the “judicial Power of the United States” in the Supreme Court and the inferior courts that Congress may establish. If Congress purports to sit as a board of review over the substance of the Supreme Court’s decisions (altering the composition of the Court at will to effect substantively different decisions), then Congress is exercising the judicial power rather than the Supreme Court. (Perhaps it could be said that Congress + the President are exercising the judicial power since both would need to agree to the legislation. But the judicial power would still not be exercised by the Supreme Court.)

    1. How about first things first?

      There is no grant of power given to Congress to pack the court.

      Why indulge the implied powers philistines?

      1. The only one talking about implied anything is Barnett. Barnett is claiming that a restriction on adding (or subtracting) seats for “illegitimate purposes” is implied by the necessary and proper clause.

      2. The power of the political branches to determine the number of seats on the Supreme Court inarguably flows from the fact that Article III is silent on that exact issue, and the political branches have the power to appoint (President) and confirm (Senate) justices.

    2. Congress can overturn judicial decisions on its own (see, e.g., RFRA), which leads to substantively different decisions. Is that “exercising the judicial power”?

      1. Congress can, of course, pass a new statute if an old statute is found to be unconstitutional. That just leaves the courts with a different statute to construe the next time a challenge is brought. But that’s an exercise of the legislative power, not the judicial power.

        1. That is WAY more like sitting as a board of review over the Court than adding one or more justices. Adding justices leads to the mere possibility of a different outcome; passing a new statute to abrogate a Supreme Court decision leads directly to a different outcome.

  24. Rather than “packing” the Court, an easier way to the same end would be to remove the Court’s jurisdiction from whatever issue is at hand. Don’t like the Court’s ________ rulings? Simply deny the federal courts the authority to rule on _______.

  25. Shocked, *shocked!* to hear Randy Barnett make a constitutional “argument” that postrationalizes preferred Republican outcomes without any sound legal or historical basis.

  26. “But first a cautionary note: Just because you can think of objections to the claim that partisan court expansion is unconstitutional, does not mean it is wrong. There are two sides to every constitutional argument. There are always objections to be made against any constitutional claim. The question is how plausible this argument will seem to others who may disagree with you.”

    The above seems like an argument for subjectivism. That there can be no objective answer to the question, or if there can be, it doesn’t matter because it is all just about who can be convinced.

    “for the past one hundred and fifty-two years, a nine-member Supreme Court has become an entrenched constitutional norm. To change the Norm of Nine, Congress needs to pass a new law.”

    The randy guy jumps right from the above to questions about necessary and proper.

    There doesn’t seem to be any argument about what make a norm a constitutional norm, and why if some norm is entrenched that a law needs to be passed to change the norm. Once a norm is changed by a law, it is no longer a norm.

    Citizen’s United upended a century’s worth of norms, and no law was passed to change it. Yet the norm is gone just the same.

  27. This post is about as self-serving as it gets.

    1. Which post? Or are all of them, including the randy guy’s piece, to some extent self-serving?

      I don’t know what interests of mine I might be serving within my comment, but there are probably some.

      But the question about why a law is required to change a norm is a genuine one, self-serving or not.

    2. Well, no. A post that says, “the Constitution requires that I be appointed to the SCOTUS, all nine seats” would be more self-serving.

  28. I have the feeling that this whole post is going to be followed by a /sarc sign.

  29. “…nor proper insofar as it undermines our system of separation of powers and the independence of the judiciary.” I would argue the Supreme Court striking down a law expanding the number of justices under Professor Barnett’s theory would do more to undermine our system of separation of powers than adding to the number of justices for political purposes.

  30. Not only does the constitution grant Congress the sole power to determine the number of Justices, not only has that power been used multiple times in this Nation’s history as Congress increased and sometimes reduced the number of Justices, but Congress has multiple times used it explicitly for political ends. In 1801 a lame duck federalist Congress reduced the number of Justices from 6 to 5 to prevent Jefferson from making any appointments. Jackson increased it to 7 to enable him to appoint new Justices. Congress created a 10th justice to accommodate Lincoln, and then refuced the number to 7 to stiff Johnson.

    I think modern times have reached concensus that overuse of that power is fraught with danger. But Congress retains emergency power to resolve a dire crisis by effectively overruling the Supreme Court in much the way the British Monarch retains emergency political powers that would similarly precipitate a constitutional crisis if used.

  31. I do not like to be a realist grinch, but does anyone think this and other testimony will actually have an impact on legislators thinking?

    1. I think Biden and other leaders are treading water, waiting to see which way the wind blows, if you’ll pardon the mixed metaphor.

    2. The whole thing is a charade. Biden has no intention of packing the court, but does need to give the appearances that he does.

      Even if he wanted to he doesn’t have the votes and, if he somehow succeeded, it would be political suicide for his party.

    3. Court Packing remains tremendously unpopular, outside hardcore Democratic partisans. If it was popular, Pelosi would have already put it to a vote, trying to build momentum toward eventual Senate passage, and giving Democrats an issue to run on in 2022. Instead, she won’t allow hearings on Court Packing legislation in the House because even though it wouldn’t pass, the attempt would cost Democrats some seats. Biden’s Commission is a sop to his party’s left wing that won’t lead to any actual legislation.

      1. It won’t pass until it suddenly does pass, in a vote held without warning. But I agree that the window for doing it has probably closed for now, they’d want to do it right after an election, not right before, so they have time to make use of it before being booted out of office.

        We have to watch for it reopening after the 2022 elections if the Democrats retain control of both houses of Congress.

  32. If the Congress can add four justices to the Supreme Court, could it add 10? 50? 500?

    Is there a line at which such a naked constitutional usurpation would become unconstitutional?

  33. Professor Barnett makes a good argument. The problem is how to reconcile it with the obvious precedent-established power of Congress to specify the size of the Supreme Court. Here’s the answer: Congress could pass a law enlarging the Court, but have it not take effect for perhaps six or eight years. Other potential changes would be to establish term limits for Justices (which admittedly is Constitutionally questionable), with replacements spaced over several election cycles. Again, the effective date of any USSC reform measures would need to be delayed long enough so that they would not automatically inure to the benefit of either Party.

    Of course this type of court expansion would not then belong in the “Court packing” debate, since it eliminates the partisan advantage which in fact motivates today’s Court packing advocates, and indeed it could easily backfire on them. Nor is this suggestion one that I personally approve of, just that it would unquestionably circumvent Professor Barnett’s Constitutional objections.

    1. Agreed — How about amending the Constitution with an echo of the 27th, except that instead of delaying pay raises, it would delay court size changes until a presidential election cycle and subsequent inauguration have intervened.

  34. >”the free representatives of the free people of America”

    Well *There’s* your Problem!

    The representatives are no longer free. They are very expensive. In fact only the wealthy can afford them.

    And so far as the people go, with all the laws against various plants, firearms, normal and natural behaviours like sexual activities (recreational or commercial), we have not been free for a long long time.

  35. What would happen if they appointed four new justices and than immediately removed the Supreme Court’s jurisdiction to hear the case?

    But seriously, all three branches are charged with upholding the Constitution. It seems improper to me that SCOTUS could tell the other two branches that a use of an enumerated power was not necessary and proper.

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