Prof. Joshua Braver Responding to Randy Barnett's Argument About Court-Packing

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In July, Randy blogged about his testimony on court-packing; his testimony relies on a study by Prof. Joshua Braver (Wisconsin). Prof. Braver sent along this response to Randy's position, which I'm happy to blog:

Court-packing is constitutional. I weigh in on this matter because Randy Barnett provocatively reaches the exact opposite conclusion relying, in part, on my scholarship. Specifically, in written and oral testimony before the Presidential Commission on the Supreme Court, Barnett generously quotes and cites my article on the history of changes in the Supreme Court's size to claim that Congress lacks the authority under the Necessary and Proper clause to change the number of seats on the Supreme Court in order to change its ideological composition.

In this blog post, I focus on how Barnett invokes my article and a key 1937 Senate report to suggest that his argument has historical roots.  I have two observations. First, additional context, not included in my article, suggests that Barnett's claim has little or no historical support and demonstrates the relative novelty of Barnett's claim. Second, Barnett's testimony is a self-conscious effort to mainstream what has long been an unorthodox argument. Scholars and the Presidential Commission should proceed with caution in deciding how or even whether to engage Barnett on the terms he seeks. Indeed, I fear that just by writing this blog post, I have granted Barnett a significant victory.

[I.] The Past

Randy Barnett argues that "Partisan court-packing is … unconstitutional because it violates both the letter and spirit of the Constitution." The Necessary and Proper clause is the source of Congress' authority to pass statutes changing the size of the Supreme Court. Drawing on the landmark 1819 case of McCulloch v. Maryland, Barnett emphasizes that the first step of any analysis must be whether "the end be legitimate." Since packing the Court to change its ideological composition is illegitimate, partisan packing is unconstitutional. Barnett anticipates an objection: the Court's size has changed seven times. Surely, the political animals in Congress must have enacted these changes for partisan reasons. Barnett rightly rebuts this assumption and in so doing "urge[s] the commission to consult Professor Braver's nuanced analysis before accepting such a characterization."

We agree! Consult my work! And I appreciate Barnett's careful and thoughtful engagement with it. (For my full article, read here and here is a short summary.) We also agree on what that work says: In my view, there has only been one successful partisan packing of the Court—that occurred with a pair of changes during Reconstruction, one in 1866 and the other in 1869. That accounts for two of the seven alterations, leaving five more to account for. Three of those five alternations were mostly administrative and related to the now obsolete practice of circuit riding. The last two, a pair with one in 1801 and another in 1802, are another example of an attempt to pack the court. But unlike the attempt during Reconstruction, this one failed. The 1801 court-packing attempt is not a precedent because it was repealed and repudiated in 1802. Barnett in no way mischaracterizes or distorts my conclusions.

But from this point on, we diverge. We diverge on what this history tells us about the constitutionality of court-packing. There is a messy, but important division of labor between legal historians and constitutional law professors. For history to be useful to constitutional law (not just to the Supreme Court), lawyers develop and apply theories of interpretation. Barnett, at great length and over many years, has developed such a theory, filtered the facts I provided through it, and reached a conclusion. That is the way law and constitutional theory often works. My article was historical and did not address the constitutionality of court-packing in anyway. But greater familiarity with the primary sources gives me a unique vantage point to offer additional context that casts doubt on Barnett's argument.

I cannot recall a single example of political actors arguing that court-packing is unconstitutional in the 18th or 19th centuries. To be sure, I did not read the sources with that objective in mind. I wrote in response to the upsurge in progressive advocacy for court-packing based on inaccurate historical arguments. When I wrote the article in 2019 no one in contemporary debates had yet taken the position that court-packing was unconstitutional and this was despite the proliferation of tweets, blog posts and op-eds for and against court-packing. The argument had not even occurred to me as a serious one, so I could not have used it as a self-conscious lens for engaging the historical materials. It is plausible that someone in the 19th or 20th century argued that court-packing is unconstitutional and that I missed it. But I doubt that it was a prominent argument in any of the debates and even more skeptical that such an argument was rooted in the Necessary and Proper clause. This absence is all the more striking because from the founding until today, scarcely any political question arose that did not resolve sooner or later into a constitutional question. If Barnett's argument truly follows from the 1807 McCulloch v. Maryland's gloss on the Necessary and Proper clause, I would expect Congressmen, newspaper columnists, and other political actors to be chomping at the bit to make the argument. Instead, there is silence.

Nor was this argument prominent during the New Deal debate over Roosevelt's court-packing scheme. This absence is telling: the New Deal debate is more extensive, richer, and has been subject to much more historical analysis than the episodes I write about in the 19th century. Of the many books on Roosevelt's court-packing plan, including the forthcoming one from Laura Kalman, who testified before the Supreme Court Commission, to the best of my recollection none give any attention to arguments that court-packing was unconstitutional. Again, the lack of Barnett-like arguments is striking.

Barnett may be able to move past the secondary literature because he provides his own New Deal era evidence: he repeatedly excerpts the Senate Judiciary Committee's June 1937 adverse report on Roosevelt's court-packing plan. Scholars and historians often discuss the report because the report and the extensive hearings that accompanied them were both an effective delay tactic and a rich source of sophisticated debate over the court-packing plan. Indeed, many of the witnesses were prestigious legal minds, including a young Robert H. Jackson who would go on to become a Supreme Court justice. The forty-nine page report is an excellent distillation of the opposition's argument against the court-packing.

Barnett has again turned to the right place, and again we draw different conclusions. First, the report does not mention the Necessary and Proper clause at all. This clause is the central hook for Barnett's argument. Perhaps this absence is because the report is a political document and hence its tone and style is less doctrinal. The relevant audience is not fellow lawyers or the court, but political elites and the general public. One should not grant this point too quickly given long history of elaborate legal arguments made from the Congressional floor. Nonetheless, it is worth considering, and some differences in tone between a law professor like Randy Barnett and a Senate committee report is to be expected.

Nonetheless, it is unclear at best whether the report, even in a political style, actually argues that court-packing is unconstitutional. Barnett's first excerpt comes from the report's introduction and Barnett quotes all its seven enumerated central points. IV is the most relevant and states, "The theory of the bill is in direct violation of the spirit of the Constitution." Note the use of the word "spirit." A distinction between letter and spirit is most important when there is a divergence between the two and for that reason it has played a central role in debates about court-packing. Many lawyers, both in 1937 and today, believe that court-packing violates the spirit of the Constitution because it undermines the independence of the judiciary and the rule of law. But the letter of the law still holds that court-packing is constitutional. Now, of course, in this quote, the Senate Report does not say that the letter of the law approves court-packing, but it heavily implies it by solely focusing on the spirit. If the letter of the law supported the committee's opposition to court-packing, it would have mentioned it upfront. Since the letter undermines the committee's conclusion, it omits a discussion of it altogether.  This quote then does not support, but rather undermines Barnett's argument that court-packing is unconstitutional.

In constitutional law, the relationship between letter and spirit is complicated and contested, but I think Barnett captures the consensus well:

"We always have to look at the letter. And then we have to enforce the letter according to its spirit. That doesn't mean the spirit of the Constitution overrides the letter. But it means that as you are pursuing the letter, and in this case it is letter of the necessary and proper clause, the functions, purposes, ends and objects for which we have a Constitution needs to be taken into account."

Barnett acknowledge that in a conflict between the letter and the spirit, the former must prevail.

Barnett's second and again lengthy excerpt of the report is better evidence for his position, but ultimately falls short. The Senate's adverse report concludes

"[Court-packing] points the way to the evasion of the Constitution … It stands now before the country, acknowledged by its proponents as a plan to force judicial interpretations of the Constitution, a proposal that violates every sacred tradition of American democracy. Under the form of the Constitution, it seeks to do that which is unconstitutional."

Whether this excerpt is calling court-packing unconstitutional as a matter of letter or spirit is ambiguous. On the one hand, the language about the "evasion" and "form" of the Constitution might be interpreted as again reiterating that court-packing violates the spirit, though not the letter, of the constitution. On the other hand, unlike the previous excerpt, this quote does, for the first and only time in the report, explicitly call the court-packing scheme "unconstitutional."  Perhaps the right meaning of this passage is a close call, but it is still not a clear victory for Barnett.

To prepare the report, the 1937 Senate Committee called many witnesses, but in these hundreds of pages of testimony from many prominent legal minds, Barnett lacks a counterpart. In their study of the hearings, Curtis Bradley and Neil Siegel argue what is most "significant about" the possible constitutional objections "is their ambiguity." It is unclear "whether the objection[s] [were] that Court-packing would be normatively improper but legally permissible, or would be normatively improper and legally impermissible." Some testimony took the conventional position that we are all familiar with today: it distinguished between the letter and the spirit of the Constitution to concede court-packing's constitutionality. In his 1937 testimony, for example Yale Law School Professor Edwin Borchard notes that "[i]n a narrow sense [the Court-packing plan] is legal, and it is within the letter of the Constitution. In a broader sense, the Webster or English sense, it is unconstitutional, because in the minds of many it is calculated to make the Supreme Court subservient to the Executive." However, no one seems to have done the opposite of Borchard and strictly argued, as Barnett does today, that court-packing is unconstitutional. Certainly, none of these witnesses, including many lawyers and law professors, declared court-packing unconstitutional in the rigorous and doctrinal style that Barnett employs.

Quotations from the Senate adverse report are the final note on which Barnett rests his case. He states, "In conclusion, I cannot improve upon the final words of the Democratic-controlled Senate Judiciary Committee's 1937 report." Barnett implies that he is standing on the shoulders of those giants who defeated Roosevelt's court-packing plan. But who is the Randy Barnett of 1937? I can think of no one, but further study would be necessary to confirm a total absence from all possible significant sources. Even if there was someone with Barnett's platform and prominence in the past and who argued for a similar position, did their arguments have any real purchase? I doubt it.

[II.] The Present

Let us get meta. I want talk about how exchanges with Barnett, like my own, might play a role in legal change.  Barnett's testimony is an effort to take a novel idea and make it a part of our legal discourse. This raises a thorny dilemma about how best to respond to what was until recently a laughable argument. Is it best to just keep laughing? Or twitter style dismiss and mock the assertions of unconstitutionality? While I personally find this kind of uncivil discourse off-putting, politically it has a very important role to play. How else should scholars respond to noxious arguments that Kamala Harris cannot run for president or that Mike Pence can declare Trump to be the winner of the electoral college? Treating these arguments with respect is a mistake. And to be clear, Barnett's argument does not have the same foul moral odor as the examples I've cited. The larger point though is that since Barnett's argument is out of the mainstream, merely taking it seriously grants it legitimacy and makes it viable. Respectful engagement with marginalized arguments is already a concession with possible real-world consequences.

Barnett does not hide his objective to legitimate his argument. In his testimony, Barnett disclaims any burden to be convincing. "The question for this commission," Barnett writes, is "not whether you all agree that the argument I have just sketched is ultimately correct… The question is how plausible this argument will seem to those who may disagree with you. Is it truly 'off the wall'? …"

"Off the wall" is a term of art. Jack Balkin, a member of the President's Supreme Court Commission, popularized the term to capture how through social, political and legal movements once fringe arguments can enter into the mainstream and even become judicial doctrine. Off the wall is now commonly employed by law professors. And Randy Barnett is one of Balkin's prime examples of his theory because it was Barnett who originated the once dismissed distinction between activity and inactivity that became so influential in NFIB v. Sebelius. In response to Balkin's use of Barnett as an example, Barnett has responded that Balkin "is right about this. I and others are trying to do exactly this." To be clear, for both Barnett and Balkin "off the wall" is a neutral term and such arguments can be perfectly consistent with each of their own distinctive originalist methodology. By invoking the term, Barnett is subtly acknowledging that he is engaged in a project of taking once laughable arguments and making them into laudable ones.

One common tactic to keep an argument on the fringe is to briskly dismiss it. Barnett anticipates the tactic and preemptively fights back. Barnett warns the that he is an expert player at the off-the-wall game, plays for keeps, and won big in NFIB v. Sebelius. In his written testimony, Barnett writes:

I hope [to have] provided reason to believe that the argument is plausible enough to be "on the wall"—or at least it could move onto the wall in the future. If so, you should include this potential constitutional difficulty in your report to the President and do so respectfully rather than derisively. As a group, 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.

For the last sentence referring to how constitutional law professors have "been wrong before," Barnett cites to his own article about NFIB v. Sebelius. The article is entitled "Why Did so many Law Professors Miss the Boat." Barnett suggests the perils of ignoring or mocking his arguments. Do liberal members of the commission want to "miss the boat" a second time? If not, they must not engage with his argument "respectfully rather than derisively."

Indeed, since testifying, on twitter Randy Barnett has repeatedly asked for his argument to be treated with decency and respect. Barnett tweets, "Pro-tip: 'I don't buy it' is not an argument. Nor is any variation on that a response." In another tweet he writes, "Before deciding on the constitutionality of court-packing, everyone should read my *written* testimony…It's only 19 pages. I'm open to counter-arguments—from those who have actually read mine." At this stage, he just wants a "response" that wrestles with the arguments in his paper. Barnett can't engage with "counter-arguments" because no one is truly taking the argument seriously. If people stopped mocking the argument, it would then have some possibility of creeping into the mainstream.

By writing a serious response, have I fall into Barnett's trap? I don't think so. Barnett invokes my work at length, and that gives me some authority to engage on those specific grounds. And that engagement has not been doctrinal. Rather, I tried to illuminate how Barnett's argument has never been in the mainstream. To accept his argument would be a break with history, not a continuation of it.

The commission, however, is invested with a different and more far-reaching influence over legal discourse than I possess. I am not sure what their best response should be. Perhaps silence or perhaps a quick one sentence dismissal is best. But I do beseech them: do not let Barnett throw constitutional gum at the Commission's walls.

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  1. Test of integrity. See how many of the talking heads and academics squawking up now are singing the same tune when the other side gets around to doing the same thing.

    1. Hey, lawyers, how about substance, for a change ftomyour lawyer garbage arguments.

      The SC makes laws. You turn a blind eye to the illegality of that. OK. That will not change.

      If it will make law, make it the size of a legislature, like 500 Justices. Make the number even to preserve precedent. Move it to the middle of the country out of the degenerate gay Washington. Exclude anyone who has passed 1L. They are now cult criminals and rent seekers.

      1. The life term is one of the 3 or 4 big mistakes in the constitution. It would be another 100 years before Alzheimer would describe his disorder.

        Say one needs 100 correct answers to get an IQ of 100 at age 16. At 40, one needs 50 correct answers to get an IQ of 100. The person with an average IQ at 40 would be fit only for special class in high school.

        That means our policies are made by very impaired people. It explains why it takes 100 years to get substantive changes in the law. We have to wait for the hierarchy to die of natural causes. It explains why nothing works, policy is being made by impaired people. Not only is national policy about complicated technical subjects being made by know nothing, idiot savant lawyer bookworms, who know shit about shit, but their ability to learn is highly deteriorated at these elderly ages.

        Get rid of the lifetime appointment. The lawyer suggested 18 year term is not subject to rapid changes after elections. Pack the Court to the size of a legislature. Restrict nominees to those under 35.

        These changes are the ones that are necessary and proper, given our knowledge about the effects of aging.

  2. The largest issue is, the necessary and proper clause. That clause is the heart of what is the issue.
    “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

    What does “proper” mean in this context? Does it serve any purpose?

    Printz v. United States was a case that involved this word. It ruled that a federal law compelling state executive officials to implement federal gun registration requirements was not “proper” because it did not respect the federal/state boundaries that were part of the Constitution’s background or structure

    Are there any other boundaries that are part of the Constitution’s background or structure? One may argue that the division of power between the Judiciary, Executive, and Legislature is part of the Constitution’s background and structure. That being said, a law or action that would effectively eliminate this division of power (IE, court packing to eliminate the independence of the judiciary branch) would not be a proper law.

    1. What does “I don’t think it proper (or necessary)” mean from the point of view of this interpretation other than “I disagree with it”?

      In any event, the Necessary and Proper Clause is completely itrelevant issue. The Constitution gives Congress direct authority to regulate the federal courts including the number of Justices.

      The Necessary and Proper clause permits Congress to do indirectly additional things besides what it can do directly. It does NOT constrain Congress’ freedom to act under the enumerated powers based on nothing more than what Professor Barnett’s personal political beliefs tell him is “necessary” and “proper.”

      This is no different — no sifferent whatsoever – from courts striking down the National Bank Act because they think it isn’t proper for the federal government to run a bank, or striking down a tax law because they think taxes are unnecessarily high.

      The “Necessary and Proper” clause, properly interpreted, no more permits the Supreme Court to become the free-floating super-legislature of Professor Barnett’s small-government dreams than the “Due Process” clause, properly interpreted, makes it the free-floating super-legislature of the liberal side’s dreams.

      1. “What does”…
        See Printz v. United States

        “In any event, the Necessary and Proper Clause is completely itrelevant issue. The Constitution gives Congress direct authority to regulate the federal courts including the number of Justices.”
        -What power in the Constitution gives Congress that power to regulate the federal courts, including the number of Justices though?. Can you cite the specific authority? Usually it’s the Necessary and Proper Clause.

        Again…you need to consider. What does “proper” mean in this context?

        1. IANAL, but my take is that there is some murky middle ground between improper and ‘perfectly proper’, in the manner of Mary Poppins. Printz v. United States is about an “improper” use, in which the court has well-established precedents against ‘commandeering’ the power of the states. And because we have those precedents, the court can easily cite them and say that something is ‘improper.’

          Here, although there’s certainly some amount of case law concerning separation of powers, and independence of the branches of government, I think it’s mostly between the Executive and the Legislative, with the Judiciary serving as the decider between the two. There’s not a lot of precedent in which the Court is defending itself against infringement by the other branches. Except some history involving Andrew Jackson, in which the takeaway is “Good luck with that!”

          1. Printz is about the 10th Amendment, not the Necessary and Proper Clause. Congress can’t commandeer the states because the 10th Amendment forbids it, not because the Necessary and Proper clause constrains it.

          2. “There’s not a lot of precedent in which the Court is defending itself against infringement by the other branches.”

            Except for the development of “Judicial Review”

        2. Congress has power to levy taxes on incomes. So the real question here is what does a “tax”mean in this context? I think it’s essentially the identical question.

          If the existence of a “proper” clause means everything Congress does has to be “proper,” then it equally follows that the existence of an income tax clause have to means that everything Congress does has to be a kind of income tax. And if it’s not an income tax, Congress can’t do it.

          The power of Congress to do “proper” things is an independent power, on top of the powers it already has. It’s no more a limitation on the other powers than the income tax clause is. Congress already has the power to set the number of Justices. The Necessary and Proper clause is as irrelevant as the Income Tax clause is.

          1. “If the existence of a “proper” clause means everything Congress does has to be “proper,” then it equally follows that the existence of an income tax clause have to means that everything Congress does has to be a kind of income tax. And if it’s not an income tax, Congress can’t do it.”

            Is that you, Cremmington? Because that sure sounds like a Cremmington ‘argument’.

            The Necessary and Proper clause is a limitation on Congress’ power to legislate. Congress is permitted to enact legislation to put the powers it is given into effect, but such legislation must be necessary and proper.

            Whereas the 16th amendment merely gives Congress “a” power, but there are others.

            So, yes, all legislation must comport with the N&P clause, but, no, not all laws have to be an income tax law. But they do have to be necessary to put into effect some power actually granted, and have to be proper.

            1. The Necessary and Proper Clause is an enumerated power, at the end of a list of them. It reads no differently from the others. There’s no textual basis for treating it diffwrently from the others. If it’s a limitation on Congress’ power, why isn’t EVERY enumerated power a limitation on Congress’ power?

              You just don’t like the Constitution as it’s written and prefer making up your own.

              Each enumerated power is an addition to the others, not a limitation on tbe others.

              1. Reader… again, you need to ask.

                Under what clause of the Constitution can Congress regulate the courts? What clause exactly gives it that power?

                1. The first sentence of article 3.

                  1. Apologies. The SCOTUS.

                2. Do you think the courts just emerge out of the aether?

                  1. Under what power does the Legislature establish and regulate the judges on the SCOTUS?

                    1. 1. Ariticle 3 says justices like lower court judges server during good behavior.

                      2. Nothing in the constitution establishes the number of justices. If that does not fall to Congress, then who do you think in the federal government has the power to determine the number of justices?

              2. ReaderY, the points you make have all been legal standards since John Marshall enunciated them. Don’t omit to cite Marshall when you try to edify knuckleheads who suppose, “Proper,” must have something to do with propriety. As you understand, they like that notion because they think it would give them leverage to use their own judgments about propriety as an unlimited constraint on government. But Marshall said explicitly that the Necessary and Proper clause was numbered among the expansions of congressional power, not among its limitations.

                For those of you—Armchair, Bellmore—casting around for a justification to put open-ended scope to limit the laws into the hands of judges, take note that Marshall used, “Proper,” in its alternative meaning as approximated by, “A proper blacksmith shop,” meaning a facility which was able and equipped to get the job done. Marshall was clear about that. He also was no fan of open-ended ambiguity. And that is what you get if you try to use, “Proper,” to mean, “According to my sense of propriety.” Which, by the way, Barnett has been trying get away with for years.

                Under Marshall’s interpretation, when is a proposed means not proper? When it has no chance to accomplish the legitimate constitutional end which congress wants to pursue. Thus, the cure for an improper means will likely be a further expansion of congressional power, not a reduction. To be proper, a means has to get the job done.

          2. The “necessary and proper” clause does not mean that legislation must be “needed” or “appropriate”. “Necessary and proper” is not a separate phrase; the full phrase is “necessary and proper for carrying into execution the foregoing powers and all other powers…”

            All it means is that not only may Congress legislate directly on the enumerated powers, but it may also make ancillary laws that are necessary to carry out one of those powers, and are also “proper” (i.e. belonging) to that power.

            For instance Congress is explicitly authorized to lay and collect taxes for the purposes specified in the first clause of section I.8 (but not for other purposes); it isn’t explicitly authorized to establish an IRS, hire people to staff it, buy land and erect buildings to house them, buy chairs for them to sit in, desks for them to sit at, and paper, pens, ink, paper clips, computers, etc. for them to do their job with. Those things, however, are clearly necessary for carrying out the tax-laying power, and are also clearly proper to that function. Therefore they are authorized by this clause.

            In this case, in order to carry into execution the judicial power that the constitution vests in a supreme court, it is both necessary and proper for someone to decide how many judges there should be! The constitution doesn’t say, but someone has to. This clause says Congress should be that someone. Likewise since it has the power to establish inferior federal courts, it’s necessary and proper for it to decide on those courts’ sizes, jurisdiction, etc., as well as to provide them with housing, staff, office supplies, etc.

  3. Barnett emphasizes that the first step of any analysis must be whether “the end be legitimate.” Since packing the Court to change its ideological composition is illegitimate, partisan packing is unconstitutional.

    Barnett rather baldly begs the question here. Why is the end illegitimate? Who says?

    Selecting nominees for the Supreme Court or lower courts to alter their ideological composition is a widespread, common, practice. Did choosing Barrett to replace Ginsburg not alter that composition?

    1. The supreme court has life terms for a reason. Its meant to change at a different rate and fashion than the Legislature and executive. In other words a different body is meant to be a different body. If its just going to change at every whim of the President and Congress they might as well be cabinet members or additional congresscritters. Is this so difficult to understand? Even a child should get it.

      1. Are you a moron?

        I didn’t say a word about changing the term. And if both houses pass a bill, and the President signs it, it’s hardly a “whim.”

        1. Uh….I’m not saying they are trying to change life term. I’m using it as an illustrative example why courtpacking is a clear attempt to circumvent the intent of the constitution. Maybe you are the one who needs to work on reading comprehension.

          1. Piss-poor example. The life term is in the Constitution. The size of the Court is not.

            1. Term limits are prohibited to keep the other branches from changing the composition of the court for partisan reasons. The court size must be adjustable over time, but it strains credulity to think that it can be increased by other branches to change the composition of the court for partisan reasons.

              1. For what non-partisan reasons do you imagine the composition might be changed?

                1. To address population growth….as population grows, need more courts to arbitrate disputes. There is a proposal now to increase the federal judiciary by north of 100 judges.

                  1. But the idea that population growth is a good thing and should be catered to rather fhan discouraged is a partisan idea. It reflects a particular outlook. Certainly it’s a partisan reason to increase the size of the court.

                    There is no such thing as a “non-partisan” reason.

              2. Term limits are prohibited to keep the other branches from changing the composition of the court for partisan reasons.

                No.

                And does it also strain credulity to think that congressional districting can be manipulated by partisan government officials to change the composition of the legislature for partisan reasons? Because the Supreme Court correctly rejected that argument.

                If they didn’t want political considerations to factor into the composition of the courts, then why did they assign the power to determine the composition of the courts to the political branches?

                1. The SC is designed to be influenced by the other branches but not to the extent courtpacking aims which basically completely guts its independence. Its this thing call checks and balances. I hope you don’t charge for your services if this is the extent of your constitutional knowledge.

                  1. This is like a caricature of what originalists think living constitutionalism is.

              3. Michael P, I do not know why this is, but when you see someone trying to use mere plausibility as a test for reliance, more often than not it turns out to be a right winger working on an alternative history project. My suggestion? If you think something sounds plausible, the first thing to do is check it out to see if it is also factual. They aren’t the same.

      2. “The Supreme Court has life terms for a reason.” True, but there are many other things that used to be considered norms that also existed for a reason that have been thoroughly trashed, such that at the moment there is only one rule: Whoever has power, regardless of party, will do whatever they can get away with. Even if it flat out contradicts what they said or did five minutes ago when they were in the minority. And that’s going to be the story with court packing too: If and when the Democrats have the votes and it’s to their advantage, they’ll do it. If and when the Republicans retake power and it’s to their advantage, they’ll do it too. Both sides will blame the other. But that’s the new normal.

        1. And that’s going to be the story with court packing too: If and when the Democrats have the votes and it’s to their advantage, they’ll do it. If and when the Republicans retake power and it’s to their advantage, they’ll do it too. Both sides will blame the other. But that’s the new normal.

          Why is that the “new normal” and why do we have to accept that? My view is that this became the way things are because enough voters have been convinced that the other side simply cannot be trusted with power. Therefore, anything that denies them power is acceptable. Throw these voters into media echo chambers and watch any chance that they’ll throw out bad actors on their side evaporate.

          And of course, there is the false equivalence that this is all equally true of both sides.

          1. Oh, I think there’s an excellent case to be made that the GOP started it and the Democrats are late to the party, but be that as it may: I would assign a significant part of the blame to our anti-democratic institutions like the US Senate (both two senators per state and the filibuster) and the electoral college, that give a disproportionate amount of political power to people whose views are completely outside the mainstream, and that allow a handful of people to completely obstruct. Getting rid of those anti-democratic institutions would go a long way toward fixing the dysfunction.

            1. If you did get rid of the Electoral College and the Senate you would end up with what we have in California. And no sane person should want that.

              1. If you did get rid of the Electoral College and the Senate you would end up with what we have in California. And no sane person should want that.

                You are saying that the large majority of those in California that vote for Democrats are not sane then, I take it? You are pretty much exemplifying my point.

                The alternative to Democrats dominating in a more truly representative national government would be for Republicans to actually try to appeal to a majority of the country instead of focusing almost entirely on a loyal base that is substantially less than a majority. In fact, I think that simple political survival would push the GOP back to being a center-right party like it once was if they had to compete for an actual majority of the country. That probably doesn’t sound good to hard-right voters, though. Hence the current state of the GOP.

    2. Deciding what ends are legitimate in the sense of appropriate to do is what legislation is about. “Legitimate” here means “authorized by one of the enumerated powers.” Nothing else whatsover. It doesn’t mean whatever hudges’’ political views tell them is legitimate.

      1. Presumably, the burden would be on the challenger to establish impropriety

        1. And the tribunal for carrying that burden is Congress. Proper means “related to one or more of the enumerated powers,” not wise, moral, or similar conceptions of “propriety.”

          Congress is empowered to create judgeships. Setting a number of judgeships is always a legitimate end.

      2. Historically, it really doesn’t work out to say, “There’s this rule governing what you can and can’t do, but only you are allowed to decide if you’re following it.” The moment you do that, the rule in principle is gone, and in fact soon enough.

        The Constitution is law, every word of it, and if laws can not be enforced against the people they bind, they don’t bind.

        1. Historically, it really doesn’t work out to say, “There’s this rule governing what you can and can’t do, but only you are allowed to decide if you’re following it.” The moment you do that, the rule in principle is gone, and in fact soon enough.

          Congress is constrained by Presidential veto power. Presidential veto power is not absolute, as a large enough majority can override it. It is not correct to say that only Congress gets to judge whether Congress’s ends are legitimate. And, of course, Congress answers to the people every two years. (All of the House and 1/3 of the Senate, at least.) That is, it answers to the people unless the Supreme Court lets state legislatures gerrymander districts and enact voting restrictions aimed at those that vote for their opponents . . .

          1. Good thing it hasn’t done either of those things yet.

            What actually happened is that an effort was made to get the Court to mandate gerrymandering in the guise of prohibiting it, by using a tendentious definition of “gerrymandering”. The Court refused to play along.

            And it’s more than a bit of an insult to anybody who braved police dogs and fire hoses, or even a ‘literacy test’ a college graduate couldn’t pass if they were the wrong color, to call things like voter ID, or banning ballot harvesting, ‘voter suppression’, or pretend they’re significantly partisan in effect.

            1. What actually happened is that an effort was made to get the Court to mandate gerrymandering in the guise of prohibiting it, by using a tendentious definition of “gerrymandering”. The Court refused to play along.

              No. The Court’s majority based their decision on saying that it wasn’t the role of the federal judiciary to decide partisan gerrymandering. Absurdly, they considered that a political question, because it is just too hard for judges to decide when a map is too badly gerrymandered. That is, if enough people in a state don’t want the party in power to manipulate district boundaries to gain an advantage that helps keep them in power and extend that power, then they are supposed to somehow vote them out despite the manipulation of the districts.

              As an example, voters in Florida passed Amendment 6 in 2010 writing restrictions on the drawing of districts into the state constitution in an effort to limit exactly partisan gerrymandering. The ballot summary:

              Congressional districts or districting plans may not be drawn to favor or disfavor an incumbent or political party. Districts shall not be drawn to deny racial or language minorities the equal opportunity to participate in the political process and elect representatives of their choice. Districts must be contiguous. Unless otherwise required, districts must be compact, as equal in population as feasible, and where feasible must make use of existing city, county and geographical boundaries.

              The state GOP that had dominated the state government for over a decade at that point hated this, of course, as it went into effect just before districts were to be drawn for the following decade. The Florida GOP tried to implement gerrymandered districts anyway (losing court battles against the amendment along the way). The Florida Supreme Court ruled against those maps as a violation of the Florida Constitution, as amended, because it was clear from the evidentiary record that they had farmed out the drawing of districts to Republican consulting groups and their computer and data-driven models that completely ignored the requirements of the constitution. All of that happened before SCOTUS ruled on the gerrymandering issue.

              Of course, that was before the left-leaning judges on the Florida Supreme Court were aged out of their seats and could be replaced by Gov. DeSantis with judges that would toe the state GOP line. I have no doubt that the Florida Supreme Court, with its overwhelming Republican majority, will find that whatever maps the legislature draws to be just fine.

              Bottom line, the SCOTUS majority knew that they were totally giving a pass to any party in control of a state government that wanted to gerrymander itself protections and extensions of their power.

            2. And it’s more than a bit of an insult to anybody who braved police dogs and fire hoses, or even a ‘literacy test’ a college graduate couldn’t pass if they were the wrong color, to call things like voter ID, or banning ballot harvesting, ‘voter suppression’, or pretend they’re significantly partisan in effect.

              What is insulting to those that fought for equal civil rights is to pretend that those voter suppression tactics of the past are entirely in the past, and everything is all better now. Or, to paraphrase the notorious RBG, that you can put away your umbrella when it is raining because you aren’t getting wet. But that is exactly what CJ Roberts’s majority opinion did in Shelby County. Just because we don’t see tactics as blatant and with as much impact as during Jim Crow, doesn’t mean that there hasn’t been attempts at voter suppression.

              Did you forget the consent decree that the RNC had been under for over two decades until 2018? Did you not know that the preclearance that Shelby nullified was still blocking state and local governments from taking some actions that would impact minorities’ voting rights when that ruling was handed down? That lawsuits were still succeeding under Section 2 of the voting rights act? (Which is under threat by the SCOTUS majority now.) Did you not know about the NC voting law that was struck down by federal courts and that even the Roberts Court post-Shelbywould not take the case up to reinstate the law? A law that the District Court judge wrote would “target African-Americans with almost surgical precision”? The NC legislature had made a request for finely detailed voting data that included breakdowns by race on the use of different voting options before moving to cut ones that African-Americans used more than whites.

              You haven’t heard of (Republican) Georgia Lt. Gov. Geoff Duncan’s book that calls out the Georgia GOP for being afraid of losing elections and how they enacted their voting law changes in response to those fears rather than any belief in the need for “election integrity”? How he refused to serve his role presiding over the state senate chamber during the consideration of the first version of those changes that were even more restrictive?

              You talk like you aren’t aware of all of this. I don’t believe that you could be that ignorant of these facts given how often you post about political issues here.

        2. Congress is constrained. But it is constrained by having to stick within the enumerated powers and not infringe the Bill of Rights. It is not constrained by judges’ subjective notions of “propriety.”

          1. That’s my conclusion, too.

            IMO, you could strike down a good deal of existing legislation on just that basis, if it were taken seriously. You hardly need to get into ‘propriety’ to notice that they’re regulating intra-state commerce, or that many federal laws infringe enumerated constitutional rights.

    3. No, bernard, it altered the complexion not the composition (structure)

  4. I don’t see any mention of the role that Northern and Southern ideologies played in the creation of new judicial circuits, and subsequent need for additional Court seats. I’d need to recheck Crowe’s “Building the Judiciary” but I believe the Antebellum Congress sought to maintain a North / South balance on the Court. Roll call data during this period shows that partisan affiliation and geographic location represented separate ideologies that emerged on different substantive issues. To say that partisanship typically didn’t influence changes to the Courts size doesn’t address the role of geographical interests and their corresponding ideogies.

  5. Hmmm. I was skeptical of Prof. Barnett’s argument at first, but the fact that Prof. Braver took the time to write this lengthy rebuttal convinces me that Barnett is correct, and court packing is indeed unconstitutional.

    1. I agree that caution is warranted. Some of Prof. Barnett’s theories which at first blush appeared implausible to this correspondent have gotten significant traction in the courts.

      1. If you take a look at the legal theories the Court has taken seriously in the past, and which a lot of the regulatory state are based on, the idea that you can dismiss as crazy almost any argument for a conclusion that has significant political support is kind of dubious. A lot of existing precedent is coo-coo for Coca Puffs, frankly.

    2. That’s kind of a dumb way to approach things.

    3. Maybe you should instead look at the arguments and evidence put forth.

  6. ” The question is how plausible this argument will seem to those who may disagree with you. ”

    ‘If I can just lather up enough half-educated, knuckle-dragging, superstitious, intolerant misfts . . .’

    Thanks for the thoughts, Prof. Braver. I’ll stick with mocking and dismissing these disaffected clingers.

    1. Artie means he’ll continue his brave bigotry to advance his cause, whatever that is, it’s not clear.

      1. Do conservatives find that calling members of the mainstream bigots is an effective method of diverting attention from conservatives’ racism, gay-bashing, misogyny, and xenophobia?

        I’d say it’s a loser’s desperate lurch but it probably would work about as well as anything else the conservatives could try in an effort to remain competitive in America’s culture war. On other words, it won’t work, but t’s about all the clingers have left.

        Except replacement. They have that coming to them. Which is nice.

  7. I’m a naif on this issue. Suppose Pres. Biden proposes, and Congress passes, legislation to increase the Supreme Court by 6 members, and the President appoints 6 new justices, who are confirmed by the Senate (VP Harris breaking the tie). A case now comes before the new 15-member Supreme Court, and one of the parties wants to challenge the validity of the Court’s new members. Does that litigant file a motion with the Supreme Court to disqualify the 6 new justices? If such a motion is filed, do the new justices get to vote on it? Or are they disqualified because they have a personal interest in the outcome (i.e., their salaries)?

    1. Allow me to introduce you to Ex Parte Levitt, where the newly appointed justice Hugo Black was part of the court that decided that justice Hugo Black had been properly appointed: https://en.wikipedia.org/wiki/Ex_parte_Levitt

  8. This is Congress’s Article III power, not one of its Article I powers. There is no “necessary and proper” qualification.

    1. What is the text in Article III that grants congress this power?

      1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

        Do note that Article 3 does not establish the number of supreme court justices. A chief justice is mentioned in Article 1, but that’s it as far as Supreme court justices go.

        Since the constitution doesn’t establish the size of the supreme court, if not congress, who would have that power?

        1. Thanks. That’s my point.

          1. That doesn’t work. This just establishes that setting the size of the Court is among the powers Congress is entitled to legislate to effect. But, notice that Congress has always exercised it by enacting laws subject to the presentiment clause. And all such laws are subject to the N&P clause.

            The only way the N&P clause wouldn’t apply, is if the power weren’t exercised by enacting laws.

            1. Awesome. And by that same logic the idea that state legislatures are unreviewable when regulating their elections is also bunk.

              1. Well, sure they’re reviewable. The question is on what basis.

                For state level elections, by the state courts applying both the state and federal constitutions, backstopped by the federal courts.

                But for federal elections, the state legislature is exercising a federal power directly delegated to the state legislature. For this purpose they’re part of the federal government, and so are bound only by the federal constitution.

                That’s still them being reviewable. It just means that the state courts can’t second guess their decisions based on non-federal criteria.

                1. But for federal elections, the state legislature is exercising a federal power directly delegated to the state legislature. For this purpose they’re part of the federal government, and so are bound only by the federal constitution.

                  As they are using their state presentment clause, by your own logic that is not true.

                  1. You’ve got something like a case there, I’ll give you that much. But you’re disagreeing with the Supreme court in DNC vs Wisconsin State Legislature.

                    “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Justice Gorsuch wrote.

                    Justice Kavanaugh joined his concurrence, adding, “No one doubts that conducting a national election amid a pandemic poses serious challenges. But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.””

                    1. Primary responsibility is not plenary responsibility.

                      And you do see that your argument against captcrisis’s Article III legislative powers rises and falls with it’s state counterpart, so your precedents, as they apply, go against your original thesis as well.

                      (I myself don’t have much of a position on the argument, though I’d argue practicality requires necessary and proper be read into Congressional Article III powers)

                    2. The word “primary” is doing a lot of work there. Neither Gorsuch nor Kavanaugh went so far as to say that election laws are unreviewable in state courts. Just that state courts (and federal courts) can’t make things up that aren’t in those laws.

                      It’s not clear to me if the standard of review is really any different than for any other law — courts aren’t supposed to just make things up in any case. (It is clear to me that the federal courts are showing a lot of interest how election laws get reviewed, but unless I’m mistaken, SCOTUS hasn’t articulated a new standard.)

  9. Assume Congress passes and the President signs into law a bill expanding the size of the Supreme Court, a heavy lift in itself. Who would have standing to challenge such a law on the basis that it is not necessary and proper?

    1. Indeed. See Ex parte Levitt, op cit.

      Presumably a party to a suit before the Supreme Court could make such a challenge, as incidental to their litigation?

    2. Why is that a heavy lift? The Biden administration has all but explicitly stated that a central reason they are taking so many blatantly unconstitutional executive actions is to generate excuses for packing the court.

      1. “All but explicitly stated” is kind of a euphemism for “never said anything like that.”

        1. True.

          I think they’re taking unconstitutional actions left and right out of a combination of wanting that excuse, and simply not giving a fig about the Constitution in the first place. But it’s not like they’ve come out and said that’s why they were doing it.

          1. Jesus, Brett. Even you can see the logic of ‘Dems are bad. This is bad. Dems will do this’ is unfalsifiable.

            1. Sure, but nobody’s making that argument here.

              You look at the recent big deal pieces of legislation they’ve been originating, such as HR1, and you’ll see they pretty much all have provisions that are strike down bait. Things the Court has already said in the past were unconstitutional.

              How Many of H.R. 1’s Provisions Are Unconstitutional?

              And that’s where actual legislation is involved. The Biden administration seems rather casual about doing things they fully expect the Court to strike down as unconstitutional.

              The only real question is why they’re doing this. I think it’s a combination of indifference to constitutional limits, (They just don’t think about them in the first place.) and building a case for Court packing.

              1. First, your logic remains unfalsifiable. You can say the Dems support anything they don’t say they do by pointing at something else you’re angry about. It’s partisanship over reasoning, and I know you’re smart enough to realize that.

                Second, Cato is an advocacy organization. Do not offer their articles as authoritative analysis.

                Third, as Texas has shown, passing laws aiming for the Supreme Court is not abusing the Constitution. That’s what you have to do to move the law. That’s not the same as offering frivolous arguments like the ones in the OP.

                Fourth, pointing at HR 1 to show Dems are plotting to use EOs to create a case to pack the Court is just rank paranoia. These things are not related.

                We. Do. Not. Live. In. A. Political. Thriller. Put down the corkboard and string.

                1. “First, your logic remains unfalsifiable. You can say the Dems support anything they don’t say they do by pointing at something else you’re angry about.”

                  Oh, come on. If somebody swings at your nose, you don’t get your claim that they were trying to punch you declared “unfalsifiably” just because they failed to say, “Thus, I punch you!”. People do things all the time for motives they don’t own up to, you’re allowed to notice what they’re doing and draw rational conclusions.

                  “Second, Cato is an advocacy organization. Do not offer their articles as authoritative analysis.”

                  I believe I’ve already pointed out that I’m not going to let you dictate what sources I can use. If you want to know what arguments people are actually using against a position, you need to go to the people who ARE against that position.

                  “Third, as Texas has shown, passing laws aiming for the Supreme Court is not abusing the Constitution. That’s what you have to do to move the law.”

                  Well, move the jurisprudence, anyway. Fine, a combination of indifference, hoping to intimidate the Court into overturning existing precedent, and building a case for Court packing if they don’t.

                  “Fourth, pointing at HR 1 to show Dems are plotting to use EOs to create a case to pack the Court is just rank paranoia. These things are not related.”

                  If only we didn’t already have independent reasons to think the Democrats were planning Court packing. This is more in the nature of confirming suspicions, than originating them. It’s not for nothing Breyer was going on talk shows attacking Court packing.

                  And, of course, last Thursday the White House announced that the SB8 ruling hadn’t changed Biden’s views on Court packing, but refused to say what those views were.

                  Seriously, the only reason to refuse to disclose your views on Court packing is that you want to do it, there’s no particular downside to saying you’re against it, otherwise.

                  1. Cato’s legal analysis is not about is, it’s about ought. You are using it to support a thesis about what the law is. This is not policing sources, it is a fundamental category error in your supporting evidence.

                    Bottom line – you are pointing to a normal thing both sides do, declaring it is actually Democrat plotting, and using that as evidence of other Dems are plotting secretly to do some other thing.

                    Your common sense is leading you towards no reality checks at all. You can get to QAnon this way – Dems support abortion, so why not other evils?

                  2. you’re allowed to notice what they’re doing and draw rational conclusions.

                    Then why don’t you ever do that? Your conclusions are always irrational paranoia: they’re acting in bad faith.

                    1. Nieporent, because Bellmore has owned up to Asperger’s, I think we can be forthright. One notable characteristic of many folks with Asperger’s is that they do follow logic when it flies out the window. That happens because deficits in social reasoning capacity define Asperger’s.

                      For people with that kind of cognition, those deficits deprive them of important information about how social norms mediate differences between plausibility and possibility. Asperger’s-style cognition can be challenged to understand that all kinds of social constraints put firm limits on otherwise logical-seeming possibilities.

                      By contrast, cognitively typical folks readily recognize that those social constraints rule out some logical extrapolations as real-life possibilities. Bellmore seems to be among the Asperger’s cohort who simply cannot make that kind of judgment.

                      He should not be blamed for that. His own style of cognition is capable of delivering insights which cognitively typical people tend to miss, because they so-much credit social norms that they overlook logically clear inferences they ought to heed.

                      Not infrequently, opportunists who understand that socially-alert kind of cognition rely on it cynically, as a means to confuse cognitively typical people, and it works—but it works much less well among people with Asperger’s-style cognition. In those instances, Asperger’s-style cognition’s emphasis on Vulcan-style, social-norm-free reasoning proves not only protective, but insightful.

                      But that experience does sometimes—perhaps too often—lead beneficiaries of such atypically clear insights to conclude that cognitively typical people are natural dupes. That can then become an additional layer in the overall social confusion with which Asperger’s-style cognition struggles to cope. To them, it can seem that estimating the appropriate weight to give to social norms is a privilege somewhat arbitrarily assigned to the cognitively typical.

                  3. I call this the “lots of people named Brett are racist assholes” style of argument.

                    1. Look, proof!

                      https://people.com/tv/vanderpump-rules-star-brett-caprioni-racist-tweets/?amp=true

                      I mean, I’m allowed to draw logical conclusions from the evidence aren’t I?

  10. If the Supreme Court can suddenly notice 150 years after the ratification of the Fourteenth Amendment that its writers unknowingly banned laws against same sex marriage I see no reason why it cannot suddenly notice that the founders, over 200 years ago, unknowingly (or silently) banned laws that politically pack the Courts.

    1. Hang on, I’m confused. Are you against the common law method or in favour of it?

      1. This is more of a “what’s sauce for the goose is sauce for the gander” argument. As such, the only argument the goose can make for the gander not being sauced is to refuse the sauce itself; You foreclose your own objections to the common law method if you use it yourself.

        1. Except Dems haven’t done anything like this.

          This has become the constant conservative excuse – this lack of principles is needed to counter the crazy libs who live in your head.

          1. Democrats have practically done nothing but. Your living constitutionalism is just applying the common law method to a written constitution.

            1. No, being non-originalist is not an unprincipled legal realism.

              And you don’t prove that it is by discarding your own principles.

        2. Of course, the sauce for the gander is good for the goose, as well. Considering that extreme partisan gerrymandering is something that *checks* can only be addressed through the same political bodies that have been formed from that extreme partisan gerrymandering, I see no reason why debates about the political enlargement (or reduction, as McConnell himself oversaw) of the Court ought to be political questions that the Court cannot hear.

  11. Stopped reading at “chomping at the bit,” which coincidentally was the page break.

  12. First what does Madison say about “necessary and proper”?

    To be honest..this all shouldn’t matter as the SC doesn’t have the right for judicial review of federal law/orders as these decisions should be made at the State level. The SC really is a junior partner in the Federal govt and was intended as such. That said this idea that the SC which is part of the Federal Govt can decide if a Federal Law is constitutional is crazy. You can’t have the umpire be part of one side (the Feds versus the States). Its obvious that the States should be able to nullify Federal laws/orders which are unconstitutional. Putting some rationality to this..a super majority (30 State) legislatures should be able to nullify any Federal Law that is in violation of the Constitution and Bill of Rights. This would solve many issues including abortion, the Fed, many Federal Agencies like DHS and so on. And return the country to the humble republic is should be.

    1. Judicial review was part of the judiciary power in England that the Founders patterned their Article III Power after.

      Don’t make things up.

      Though it is telling what you have made up. Nullification is a solved problem. We had a war and then passed some Amendments about it.
      Sorry ’bout the Confederacy.

      1. We did have a war, but I don’t recall any amendments actually bearing on the topic of nullification.

        As I’ve observed before, “We killed the last person who tried that.” IS an effective counter, but it only works as long as people continue to believe you’re willing to kill them. And it totally fails at persuading people that you’re right, it merely persuades them that you’re homicidal.

        1. The 14th is absolutely predicated on judicial review being a thing that exists.

          And yeah, winning wars has force of law. This has been true throughout history. It’s even baked into our jurisprudence with the Indian Wars.

          1. Judicial review being a thing that exists doesn’t imply that nullification doesn’t also exist.

            No, winning wars has the force of force. You only win arguments by threatening to kill people for as long as people continue to believe you’re homicidal, it doesn’t persuade, it intimidates.

            1. The Right of Conquest is recognized in law. There were ambiguities in the Constitution about secession and nullification before the Civil War. There are not so now. You can cry about the war all you want, but among other things it settled those questions.

              State Nullification (which is what we’re talking about) is fundamentally about ignoring judicial review.

  13. Whether in the short or the long term, the Supreme Court follows the election returns.

    The fate of the Constitution will be decided at the ballot box.

  14. Under Professor Barnett’s theory, every single appointment of every federal judge that’s ever been is void. If political considerations are “improper” when determining how many judges there should be, I don’t see how it could possibly be argued that they aren’t “improper” when determining who should fill the seats.

    Somince every single judicial appointment has been “improper,” they must necessarily all be void.

    I don’t see how it’s possible to argue that the President and Congress aren’t permitted to consider political considerations when determining how many seats there should be, yet are somehow permitted to do so when considering who should fill them.

    1. The N&P clause gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof”.

      Not “necessary and proper” full stop. Necessary and proper for carrying into execution all the powers granted.

      If a law is necessary to carry such a power into execution, and proper for carrying such a law into execution, it’s good to go.

      What the clause actually bars are not laws enacted with bad motives, but instead laws which seek to exercise some power that wasn’t actually granted, or perhaps was even barred.

      So, say Congress, in the guise of regulating the courts, enacts a law, not enlarging the Court, but instead placing some members on ‘senior status’, removing them from exercising the Court’s powers. That would be a N&P clause violation, because Justices aren’t subject to being forcibly retired short of being impeached.

      But enlarging the Court, however bad an idea it might be if done just to change the way the Court rules, is an exercise of a power Congress is actually granted, and so passes N&P handily.

      Lots of modern laws properly ought to fall to N&P review, because they’re using the interstate commerce clause as a fig leaf for exercises of powers that specifically weren’t granted, such as regulation of intra-state commerce, and non-commerce. But Court packing?

      Terrible idea, but entirely constitutional.

      1. See Brett, I’ll disagree there

        “But enlarging the Court, however bad an idea it might be if done just to change the way the Court rules, is an exercise of a power Congress is actually granted, and so passes N&P handily”

        Here’s why.
        1. The only way Congress can enlarge the court, is through the use of the necessary and proper clause. There’s no other power Congress has that will justify such a law.

        2. In my view, the Necessary and Proper clause is designed to uphold the Constitution as a whole. And if a law undermines the Constitution by eliminating the separation of powers between the branches, then it is not proper. Court packing, in this context, would change the composition of the court in order eliminate its independence

        3. Other non-proper laws would be, for example, a law that restricted the Presidency to people with the last name Clinton, Obama, and Bush. Or a law which redefined the number “2” in the Constitution to mean “1.” Or any number of other laws which had the purpose to undermine the separation of powers within the Constitution.

        1. 3.: The Constitution sets the qualifications for the office of President, leaving Congress no authority to add to or subtract from them. So any law purporting to do so fails under my N&P analysis.

          Redefining the meanings of words in the Constitution amounts to amendment, which is a power in part of Congress, but Article V sets out how to do it, and it’s not by legislation.

          1. “The Constitution sets the qualifications for the office of President, leaving Congress no authority to add to or subtract from them. So any law purporting to do so fails under my N&P analysis.”

            The Constitution established minimum qualifications. It says nothing about additional qualifications being banned. If Congress wanted to add qualifications, why couldn’t it?

        2. Congress is explicitly granted the power to “establish” the courts, so what are you talking about?

          Anyway, they’ve set the size of the court lots of times, so according to you, is it unconstitutional that the court currently has nine justices?

          This whole exercise is just dumb, what am I even doing here…

  15. Barnett’s argument is laughable, and it won’t matter. If it gets to the point where Democrats add justices, I can’t imagine these justices would voluntarily recuse themselves (or agree with this laughable argument). Sure, Republicans will whine and complain (as Democrats did regarding Garland/Kavanaugh/Barett), but this whining and complaining will be about as effective as the Democrat’s whining and complaining in response to past Republican constitutional hardball.

    1. I agree that, if they pack the Court, they’re not going to do it with impartial jurists who might conceivably rule against themselves accepting the position, They’d be filling those slots with fire breathing partisans who’d give them a blank check to do anything they wanted.

      At that point the losing side either accepts that the Court has been packed, or starts down the road to civil war.

      1. Or just does more packing of their own at the very next turn of party dominance. If there’s no limit, there’s no limit.

        1. I’ve never been impressed by the “tit for tat” argument against Court packing. We should not expect it to persuade anybody considering packing the Court. As I’ve said before, that’s like telling somebody who’s holding a gun on you, “You shouldn’t shoot me, if you do I’ll just shoot you the next time, and then you, me, in an endless cycle of retaliation!”

          They’ll just shoot you dead, and then say to the corpse, “Your turn!”.

          Thinking the “tit for tat” argument will persuade shows that you haven’t gamed out the situation, considered what the next step after Court packing will be: Entrenchment measures, to make sure the other side never can end up in a position to return the favor!

          The point of Court packing isn’t to have packed the Court, it’s a means to an end, not the end itself. The actual end is the legislation that a packed Court will not strike down, and the legislation from the bench an unpacked Court wouldn’t have perpetrated. And first and foremost among these will be measures to rig elections.

          The Court has struck down campaign ‘reform’ measures that amounted to political censorship. It has refused to impose a requirement for gerrymandering in the guise of banning gerrymandering. A packed Court would have already allowed our political speech to be curtailed, would have already mandated that districts be redrawn to the Democratic party’s favor.

          And that’s just the stuff they’d originally thought they could get past an unpacked Court. Who knows what they’d try if they had already made the Court into a rubber stamp?

          1. I disagree. The point of packing the court would be to bring some balance. Instead of conservatives controlling the court for the next several decades, each side would get the court approximately 50% of the time (switching every ~16 years or so).

            Democrats would be no more worried about future Republican attempts to pack than they are right now about the current state of the court.

            1. There are no “conservatives” or “originalists” on the court, Thomas is the closest but he’s just one.

          2. Elections have been getting rigged since Tammany Hall. But yes it’s likely to get worse and court packing would just super charge that.

      2. “At that point the losing side either accepts that the Court has been packed, or starts down the road to civil war.”

        That’s quite a dichotomy you have there.

        I don’t see why divorce can’t be peaceful. A bloodthirsty Lincolnian tyrant having is way isn’t a foregone outcome.

        1. The exact complaint the left have, is that they’re not getting to rule the whole country on the basis of winning in part of it. That sort of categorically precludes a peaceful divorce.

          1. If a state wanted to withdraw from the union, what would the polls look like for public support of going in and killing them?

  16. I propose that we appoint 331 million justices to SCOTUS. That brings power to the people.

  17. Brief thoughts-

    1. I once saw Barnett “on tour.” It was before the ACA- I think he was talking about Hunter’s Lesee? Anyway, he had been scheduled to speak “debating” a law professor, but that person had to cancel, so a historian came in instead.

    It … was … brutal. Barnett was just pwned, repeatedly, by the historian, since he didn’t really know the history. It was an abject lesson in the difference between “law office history” and “history history” that proved invaluable to the people watching.

    2. I trust that at this point, any attempt by Barnett and those like him to refer to “originalism” as anything other than a completely results-oriented jurisprudence devoid of any constraints has been firmly consigned to the trash bin.

    These arguments wouldn’t pass the sniff test when it came to a parody of living constitutionalism, let alone any type of real argument other than, “I don’t like it, therefore it must be unconstitutional.”

    3. There is probably a term for relying on someone else’s work to justify your own outlandish claims, and then having that person say, “Nope. Not only are you wrong, but you are completely and totally wrong.” It’s kind of like Annie Hall, except Barnett is loud-mouth academic who has McLuhan showing up to say that he’s a moron.

    1. Listening to Baude’s podcast has proved enlightening.

      Baude is often at loggerheads with Barnett style originalists, because Baude is contracting these factual questions out to actual professional legal historians and getting results the 1980s collateral attack on Warren Court precedents originalists don’t want.

      Originalism has become cultural though, so I expect Barnett’s people to win the day, even as by doing so they lock their arguments away from scholarship and into a reactionary partisan mindset that is not going to adapt or play well into the future.

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