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Daniel Epps on Nonoriginalism and Court-Packing
Michael Ramsey

At Dorf on Law, Daniel Epps: Non-Originalism and Constitutional Arguments About Changing the Supreme Court's Size.  From the introduction:

Todd Henderson published a piece in Newsweek arguing that "there is a fatal flaw in Democrats' plan to 'pack' the Court if they win—it is plainly unconstitutional." ...  Will Baude ... shortly thereafter responded with a thoughtful blog post in which he noted that Henderson's piece has "already attracted a ton of criticism" and arguing that the "criticism deserves more scrutiny." 

In this post, I'm going to respond to Will's post. I have three goals. First, I'll try to explain why there haven't been well-developed arguments about the constitutionality of Court-packing/expansion, and why Henderson's piece wasn't likely to prompt them. Second, I'll offer some larger thoughts about how academics should respond to arguments like Henderson's, prompted by Will's post. Third, I'll offer some tentative arguments about the constitutionality of changing the Court's size.

I'm particularly interested in this part of his argument:

That something hasn't happened much before doesn't mean it's unconstitutional (see, Leah Litman's Debunking Anti-Novelty). It still remains that it would be hard to justify an argument that the size of the Court can never be changed (since it clearly has been). Instead, one would have to argue that changing the size of the Court becomes unconstitutional when done for certain reasons. This is the view that Henderson suggests in his piece: 

... The Democrats' intent is to pack the Court for political reasons, plain and simple. This would be unprecedented in our history. And, the intent to destroy the third branch—the one that ensures the other two comply with the Constitution—is sufficient to find it illegal.

The problem with this argument is that it seems to prove too much. If changing the Court's size for partisan or ideological reasons is unconstitutional, why wouldn't other actions by Congress or the Senate in particular relating to the Supreme Court be unconstitutional when done for partisan reasons? What about not holding hearings or a vote for a nominee simply because he was nominated by a Democratic President? What about rushing through a confirmation days before an election—another unprecedented event—based on the President's justification that the new justice was needed to rule in his favor on election-related disputes? 

I can construct plausible constitutional arguments for the unconstitutionality of these actions just as easily as Will can make constitutional arguments against Court packing. And, to be sure, some progressives have made such arguments. But for the most part, that hasn't been the tack that Democrats took in response to the Garland and Barrett precedents, or to the abolition of the filibuster to get Justice Gorsuch confirmed. Rather than arguing these various events were unconstitutional, Democrats (including Senators) largely argued that the Republicans' actions were legal but norm-breaking.

This raises a broader point about nonoriginalism: it's hard to know what counts as an argument and what doesn't.  Professor Epps says norm-breaking doesn't mean unconstitutional.  But at least some scholars during the Garland episode said it did (or might): see here and here from Robin Bradley Kar and Jason Mazzone (arguing that "historical traditions like these [regarding Supreme Court nominations] can ripen into constitutional rules that inform the best interpretation of constitutional text and structure").  I don't know how to resolve this debate from a nonoriginalist perspective.  To what would one appeal?  What are nonoriginalism's first principles?