The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.