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Another View on Court-Packing
David Weisberg

The question—Is court-packing constitutional?—has, I think, both enormous consequences and a very clear answer.  Article III is completely silent as to how many “Judges” shall sit on the “supreme Court.”  Therefore, the members of Congress may increase or decrease that number as they choose.  Moreover, the size of the Court changed 7 times in its first 80 years.  I’d think originalists would take that as strong evidence that changing that size is entirely consistent with the original meaning of the Constitution.

Prof. Rappaport suggests that it might be important to consider whether the motive behind a push to expand the Court is consistent with the “spirit” of the Constitution, even if nothing in the “letter” of that document prohibits expansion.  It is suggested, further, that the “necessary and proper” clause of Article I, Section 8, bars laws that are inconsistent with the “spirit” of the Constitution, citing McCulloch vMaryland.  Prof. Rappaport is not sure whether such an approach is right or wrong.  I think it is clearly wrong.

First, a very general point.  I’m not an originalist but, as I’ve explained elsewhere, I fully agree with the late Justice Scalia’s view that many of the Court’s most noted decisions, beginning in the Warren era and continuing thereafter, displayed disdain for democratic decision-making and an exaggerated notion of judicial competence and authority.  Justice Scalia championed his original-public-meaning originalism as a means to an end, namely, curtailing judicial overreaching.  The idea that laws that are consistent with the “letter” of the Constitution nevertheless may be struck down as inconsistent with the Constitution’s “spirit” is a gold-plated invitation to the judicial overreach Scalia abhorred.

It is suggested that expanding the Court might be inconsistent with the “spirit” of the Constitution because the Court is intended to be an independent branch of government.  The Court certainly is intended to be independent, but its independence is guaranteed (to the extent it can be) by life tenure, non-diminishing compensation, and the judicial oath.  Those who would expand the Court and then confirm new Justices can’t be sure of the result.  Pres. Eisenhower famously said that his two biggest mistakes were sitting on the Court.      

More fundamentally, the idea that the Court may be expanded for a good reason (one consistent with the Constitution’s “spirit”) but not for a bad reason (one that is inconsistent with that “spirit”) leads to incoherence.  The quintessential bad reason, we’re told, is that congressional majorities and the president want to ensure how future cases are decided—to pick an example at random, to ensure that the essential holding of Roe vWade will always be affirmed.  But if congressional majorities and the president sincerely believe the Constitution requires that affirmance, how does it violate the “spirit” of the Constitution to try to ensure that result?

Moreover, if one accepts that, depending on the motives of Congress, court-packing might or might not be constitutional, the question arises: How would the courts decide the question of constitutionality?  Some members of Congress would say they voted for expansion because the Court does not fairly reflect the diversity of the American people; others would say they voted to ensure the survival of Roe; others would say nothing.  How will the motivation for expansion be determined?      

Finally, consider the bleak drama that will unfold when the case reaches the Supreme Court.  The then-sitting Justices will have to decide whether the significance of their votes on the nine-member Court will be diluted by the addition of X number of new Justices.  Should they all recuse themselves because they have a direct interest in the outcome?  In contrast, if the Court recognizes that court-packing presents no constitutional issue (because the Constitution is completely silent regarding the size of the Court), the current Justices would avoid potentially embarrassing questions of conflict of interest by simply refusing to entertain a facially meritless question.

I personally believe court-packing would be a huge mistake, although it’s not unconstitutional.  Over time, beginning probably with the ‘borking’ of Judge Robert Bork, elected politicians have in effect been teaching Americans that the Court is just a third political body that should reflect partisan interests.  We have seen confirmation hearings where Senators seem to focus on everything but a nominee’s qualifications as a judge.  In 2016 we witnessed the non-confirmation non-proceedings for Judge Merrick Garland, which in my opinion violated the Senate’s implicit constitutional duty to consider and vote on nominations if there is reasonable time to do so.  When Donald Trump ran for president in 2016, he said that he would be “putting pro-life justices on the Court.”  And when he was running for president in 2020, Joe Biden confirmed that support for Roe would be a “litmus test” for his Supreme Court nominees.

Expanding the Court would be seen by Americans as additional proof that the Court is being, or has already been, transformed into a political institution; roughly half of them would think that’s a good thing, and the other half would think it’s bad.  It is dreadfully easy to imagine that, if Democrats expand the Court in 2021, then, when Republicans regain power, the Court will be expanded yet again.  Court-packing is a step neither party should take, but the Constitution is not a bar.  Let’s remember Justice Scalia’s favorite rubber-stamp: “Stupid, But Constitutional.”