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