Court-Packing Is Unconstitutional | Opinion

The confirmation of Amy Coney Barrett to be the ninth justice on the Supreme Court has intensified calls by Democrats to increase the number of justices on the Supreme Court if Joe Biden wins the presidency. (But, interestingly, not if he doesn't.) In an interview with "60 Minutes," Biden characterized the issue as "a live ball," while Rep. Alexandria Ocasio-Cortez (D-NY) tweeted, "Expand the Court" in the wake of Barrett's confirmation.

But there is a fatal flaw in Democrats' plan to "pack" the Court if they win—it is plainly unconstitutional.

The Constitution says very little about the judicial branch. Article III, Section 1 states, "The judicial Power of the United States, shall be vested in one supreme Court." It does not say how many members the Court should have. A person committed to the plain text of the original Constitution might reasonably conclude that the Court can have any number of members. But there is a major problem with this thinking.

Democrats aren't famous for caring so much about the plain text of the Constitution. A nine-justice Court isn't enshrined "in the Constitution," but neither is the right to an abortion, the right to same-sex marriage or a host of other totems of modern liberalism. Instead, the Supreme Court has found these rights implicit in the text, structure and history of the Constitution—with a heavy dose of modern policy arguments and politics, to boot. In fact, liberal justices and politicians ridicule conservatives for treating the text of the Constitution as a kind of contract to be interpreted strictly. Declaring "originalism" as an attempt to take America back to the 1790s, as many Democrats have done, sits uncomfortably with the argument that we should strictly interpret the words of the 1790s when setting the number of justices.

History strongly supports maintaining the Court's current size. The number of justices has changed on occasion. Originally, the Court had six justices. It grew to seven and eventually 10, before settling back to nine by the end of the Civil War era. As Princeton University's Keith Whittington has described in these pages, the change in the number of justices was largely a matter of accommodating the needs of a growing nation—not the political whims of Congress. The justices were originally chosen from various regions of the country and had an obligation to travel around their region hearing cases in lower courts, a practice known as "riding circuit." As the nation expanded, so did the Court. The judicial branch lobbied for years for an expansion, given the increased workload and burden of riding circuit in the expanding American West. When justices had to travel by carriage throughout the land, this expansion made sense. Expanding the Court was meant to improve the function of the judiciary—not undermine it.

The United States is 10 times bigger now than it was when the Court was fixed at nine members, but justices no longer ride circuit. And the number of cases it hears are easily manageable by its current composition. In any event, Democrats today are not talking about expanding the Court because of population growth, but packing it because they are upset with its political composition and the way in which the Senate treated Judge Merrick Garland in 2016. Even if you believe Garland was mistreated and Barrett's confirmation was a hypocritical act, the intent to undo these acts of politics by packing the Court is completely out of bounds.

Intent matters, as the courts have recently held in several recent cases in which they declared federal policies unconstitutional based on the alleged bad intent divined from President Trump's tweets or other statements. 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.

President Franklin D. Roosevelt
President Franklin D. Roosevelt Keystone Features/Getty Images

The size of the Court has, of course, previously been a political football at times. Upset about President Andrew Johnson's attempt to undo Reconstruction in the period after the Civil War, Republicans in Congress brought the number of justices down to seven so that Johnson wouldn't have a chance to make additional appointments. As soon as Johnson left office, congressional Republicans increased the number of justices back to nine. It has been nine ever since.

This episode is a terrible precedent for Democrats' plans to pack the Court. Following this approach would lead to a tit-for-tat cycle that might be difficult to break. Democrats increase the size of the Court; then, when Republicans are in charge, as they will be at some point, they retaliate. The Court's rulings—whether to protect gay marriage or property rights—would then mean nothing beyond the term of the president and Congress in power at any given time. This is a full-frontal assault on the rule of law, which the Constitution is designed to establish and secure.

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."

There are other powers Congress arguably has that similarly could destroy the judiciary. The Constitution's plain language seems to give Congress the power to strip the Court of its ability to hear constitutional questions. No one proposes such legislation and no one doubts that the Court would not permit such jurisdiction-stripping. Our precious and hard-won liberties would be in peril if Congress assaulted the Court in this way. Similarly, the Court will not allow Congress to destroy the judiciary and replace it with a purely partisan process.

In the final line of its 1937 report on Roosevelt's court-packing plan, the Senate Judiciary Committee wrote that packing is "a measure which should be emphatically rejected [so] that its parallel will never again be presented to free representatives of the free people of America." Roosevelt backed away from his attempt to destroy the judiciary. Unfortunately, the rejection was apparently not emphatic enough, because many of our representatives today are again raising the specter of the politicization of the Supreme Court beyond recognition. Here is hoping saner minds prevail.

M. Todd Henderson is professor of law at the University of Chicago Law School.

The views expressed in this article are the writer's own.