The Tea Leaves of Court Packing
A law professor has written an opinion piece arguing that court packing is unconstitutional.
The basic outline is that while, yes, Congress explicitly has authority under the Constitution to determine the size of the Supreme Court, doing so would violate the spirit of separation of powers if the intent is to undermine one branch.
The last time Democrats tried to pack the Court for political reasons, it was widely rejected as at odds with the Constitution. In 1936, President Franklin D. Roosevelt proposed adding justices after the Court had invalidated some of his New Deal legislation. The Senate Judiciary Committee declared that it was a "needless, futile and utterly dangerous abandonment of constitutional principle." After reviewing the text, structure and history of the Constitution, it declared any proposed increase in the size of the Court for political reasons to be flatly unconstitutional. It concluded that "[The packing plan's] ultimate operation would be to make this Government one of men rather than one of law, and its practical operation would be to make the Constitution what the executive or legislative branches of the Government choose to say it is—an interpretation to be changed with each change of administration."
It's an interesting argument, and one I find plausible. And of course, it would solidify as the ultimate Chad move if SCOTUS just said "Nah" to a court-packing attempt.
Obviously this piece generated a ton of pushback, but let's consider pushback from a sympathetic source:
So far as I can tell, there are three basic paths to rejecting this argument:
The original meaning of the Constitution is our law, and under the original meaning, Congress's Article I powers allow it to set the size of the Court even if it does so in order to manipulate the Court's decisions.
The original meaning is not decisive, but even so, there are no unwritten separation of powers constraints on Congress's legislation concerning the Supreme Court.
There are unwritten separation of powers constraints on Congress's legislation concerning the Supreme Court, but court packing does not violate such a constraint.
I am an originalist, so point number 1 does it for me. But a lot of the people who reject this argument as frivolous do not accept originalism as decisive, so they must take one of the other two paths. Both of the other two paths seem plausible to me, but I think they would benefit from being spelled out.
For point number 2, if there are no nontextual separation of powers doctrines in this area, why not? And does that imply a rejection of other nontextual separation of powers doctrines, and if not what distinguishes them? This could be a very fruitful case study for understanding how non-originalists determine the validity of an asserted non-textual norm.
Or for point number 3, if court-packing complies with the nontextual separation of powers norms, why is that? One possibility is that court-packing is valid because it is a sort of "constitutional self-help," valid only because it is a form of necessary retaliation against supposed misbehavior by the Court. But if this is the theory, it would be quite arresting to spell it out, and it would imply that the validity of court-packing rises or falls on the charge of judicial misbehavior. I'm sure it is not the only possible form of argument number 3, but hearing the other arguments would be helpful, and would also inform the broader debates about court reform.
I anticipate that a ton of principle is going to be jettisoned out of the window in favor of just plain power grab. Supporters of court packing like to point to the Merrick Garland nomination controversy. The gist of the argument is that court packing (with Justices nominated by Democrats of course) is a valid rejoinder to bad behavior which has already happened.
I'll admit my biases are with Republican-picked Justices (as much as I loathe Trump, his SCOTUS picks have been perhaps the one bright spot of his presidency) but I genuinely do not see the validity of the Garland pearl-clutching. I totally understand why Democrats were mad, but I didn't see the episode as an illustration of an existential crisis. The Constitution clearly says that justices are nominated by the President and then appointed with the "advice and consent" of the Senate. If the Senate refuses to hold hearings, that's the same thing as withdrawing consent, and it's a perfectly valid exercise of their power. The system is working exactly as it should.
I think what is fueling this current fire is the blatantly false reasoning that the Senate gave for not confirming Garland. "Too close to the election" turned into myriad of subclauses to justify the past behavior and was obviously pretextual. I have no way of proving this, but I think the energy behind court-packing would be significantly diminished if Republican Senators didn't just lie about their Garland reasoning in the first place.