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10/23/2018

Prohibiting Court Packing by Constitutional Amendment
Mike Rappaport

Jim Lindgren has proposed a constitutional amendment that would constitutionalize the nine-member Supreme Court. The key language is:

The size of the Supreme Court of the United States shall be nine members, consisting of one Chief Justice and eight Associate Justices, though from time to time one or more of these nine offices may be vacant.

The idea is to create a constitutional obstacle to court packing. I greatly sympathize with this amendment in two ways. First, I think that Supreme Court packing is a very bad thing—one which will eventually be seen as bad even by the people who currently propose it. Once one side packs the Court, the other side will respond in turn. It is only hyperpartisanship and shortsightedness that prevents people from seeing this. Everyone will be better off without court packing, and this constitutional amendment would prevent it.

Second, I strongly believe that constitutional amendments are needed for a workable originalism. If the Constitution is to be updated, constitutional law must change and that should occur through constitutional amendments, not through judicially made-up constitutional law. The alternative to a constitutional amendment in this area is either to allow court packing or to have the Supreme Court declare court packing unconstitutional. While it would seem strange today, I can certainly imagine the Supreme Court declaring a law that expanded the membership of the Court to 13 or 15 members, with all of the vacancies to be filled by the President and Senate at the time, to be unconstitutional. If you can’t imagine it, read some high court decisions from other countries, such as India.

Yet I do have a reservation about the amendment. It locks in the existing nine-member Supreme Court, and that might not be a good idea. Who knows how ideas about the appropriate size of the Court may change over time. There is another way to block court packing without that lock-in. Instead of a blanket ban, we could pass a constitutional amendment that permits laws to change the size of the Court only if those changes do not take effect until 20 years after passage. (I would be willing to consider 10 years as an alternative.)

Because people cannot predict which party will have a majority on the Court or will control Congress and the Presidency, these laws would allow changes in the size of the court without permitting court packing. But while I prefer this alternative to Lindgren’s, I still support Lindgren’s over the existing arrangement.

Ilya Somin argues on Twitter that the left will not accept this proposal. One possibility is to combine this with another of Lindgren’s proposals – to have 18-year term limits on the Supreme Court.  I support the term limits proposal as well, and so would be happy to see them combined. Somin, however, argues that this won’t be sufficient to get the left to support the proposal.

He may be right, but so what? Constitutional amendments are often not short-term fixes but longer-term solutions that require a while to secure the necessary support of the country. Let the amendment be debated in Congress, talked about throughout the country, and be supported by some state legislatures. Then, if the Democrats attempt to pack the court, the country will see the problem up close. And if the Democrats do not succeed, the amendment might pass at that time.

I would rather wait for the country to see the value of the amendment than to include a sweetener that is a bad provision and that blemishes the Constitution.