The Constitution – Packing the Supreme Court


Court-packing is an effort by the two elected political branches (legislative and executive) of the federal government to predispose the judicial branch (especially the 9 Justices who sit on the Supreme Court) to decide Cases in accordance with the policies of Congress and the President, and not necessarily in accordance with the Constitution and rule of law.  The problem with “packing” the Supreme Court is that, as Alexander Hamilton agreed in Federalist No. 78: “[T]here is no liberty if the power of judging be not separated from the legislative and executive powers.”

Packing the court is done by passing a law to increase the number of Justices on the Supreme Court (each of whom has one vote in deciding a Case) to a number large enough to change the Court’s decisions, especially in Cases with important questions about what the Constitution allows the government to do.  To the point, if the Constitution does not allow the federal government to do something, then the government lacks the power to do it.  So if Congress enacts a “law” not allowed under Article I, Section 8 of the Constitution, it is vital in a Case concerning the unauthorized “law,” that the Judges and Justices decide against the unauthorized act of Congress.

To understand how a court-packing effort comes about, assume that Congress and the President want the United States of America to have a higher birthrate.  To carry out a birthrate policy would require new laws.  Because laws must be constitutional, we read the eighteen short paragraphs in Article I, Section 8 of the Constitution to see if Congress has the power to legislate a national birthrate.  The powers enumerated in Section 8 say nothing about Congress having powers to increase or decrease the number of American babies. Therefore, we have the answer.  Because the Constitution gives no authority or power to Congress over the birthrate, neither Congress nor the President may enact or enforce a law regarding a higher birthrate.

Nevertheless, suppose that Congress and the President insist on enacting a “law” to increase the birthrate despite the fact that Article I, Section 8 of the Constitution does not allow it.  (In American government, Congress makes its policy decisions based on both legal and political considerations. So too does the President, which is why political parties are involved in elections.)  Because federal Judges and Justices are constitutionally bound to make decisions based on law alone (not politics), birthrate “laws” would lose in every Case decided by Judges and Justices who heed the Constitution and rule of law. 

Given Hamilton’s insistence (Federalist No. 78) on the importance of independent (no politics) judging, the authority of the judiciary to prevent unconstitutional laws might well be the main reason why the Constitution separates the powers of government.  Separated powers are divided and limited powers, essential for a nation whose people control their government under the rule of law.  

As Alexander Hamilton further explained in Federalist No. 78, the courts’ duty “must be to declare all acts contrary to the manifest tenor of the Constitution void.  Without this, all the reservations of particular rights or privileges [to the States or to the people] would amount to nothing.”  In other words, unless there is judicial independence to “check” and invalidate “laws” enacted by Congress or enforced by the President but disallowed by the Constitution, the people and the States lose the protection of the Constitution in court.  As a consequence, the people lose control over their government.

Indeed, the Constitution gives federal Judges and Justices extra-special treatment to assure their independence in judging cases.  For instance, federal Judges and Justices are appointed by the President with the advice and consent of the Senate.  Federal Judges and Justices are not elected.  Also, federal Judges and Justices have lifetime tenure.  Federal jurists are neither term-limited nor do they serve at the will of anyone.  As long as federal Judges and Justices maintain good Behaviour, they have job security for life.  Finally, their compensation cannot be diminished while federal Judges and Justices are in office.  There are no pay cuts even if judicial decisions dissatisfy Congress or the President. 

President Biden’s would-be court-packing effort is not the first time the two elected political branches of the federal government have tried to subject the independence of Supreme Court Justices.  In the 1930’s, President Franklin Roosevelt was determined to persuade the Supreme Court to carry out his New Deal policies and legislation in spite of the limitations of Article I, Section 8 of the Constitution.  President Roosevelt devised a plan for Congress to pass a law to add five (5) new Justices, who he would appoint, in order to uphold New Deal laws and policies typically held unconstitutional by 5 to 4 votes in Cases decided by the Supreme Court.

Because Roosevelt’s court-packing venture was viewed as abusing the constitutional process that ensures an independent judiciary, the President’s plan was unpopular.  The court-packing bill ended up being sent to a congressional committee and killed.  

Still, Roosevelt’s stratagem unnerved one of the Supreme Court Justices, Owen J. Roberts, enough to persuade Justice Roberts to change his vote in Cases and decide in favor of New Deal outcomes.  Justice Roberts’s abrupt voting shift, which began on March 29, 1937, was known as “the switch in time that saved nine.”  From the day Roberts changed his voting, the Supreme Court decided New Deal issues and Cases in line with the political will of Congress and the President rather than strictly according to the Constitution. 

That unconstitutional sea change was in keeping with what then-Chief Justice Charles Evans Hughes had opined when Hughes was governor of New York: “We are under a Constitution, but the Constitution is what the judges say it is.”  To which, Theodore Roosevelt rejoined that the Constitution does not belong to the judges; the Constitution belongs to the American people.

If the Biden administration succeeds in changing the votes of the nine Justices sitting today on the Supreme Court, or if Congress and the President pass a court-packing law increasing the number of Justices disinclined to decide Cases within the limitations of the Constitution, we can expect further transmogrification in Supreme Court decision-making.  Cases featuring issues such as abortion, free speech, religious freedom, critical race theory, education, freedom of the press, right to bear arms, search and seizure, due process, or equal protection would more likely be decided on political grounds and not on constitutional grounds if the Supreme Court is “packed” with ringers.

The founders who wrote the Constitution and the people and the States who ratified it established the three independent branches of government together with their respective checks and balances for a reason.  Without these particular constitutional safeguards (Separation of Powers), what is there to restrain the federal government from becoming an unaccountable undivided force?  The purpose of separating the three main government powers and keeping them independent of each other is to enable men and women in each branch of government, not to cooperate, but to restrict to their proper bailiwicks the separate and distinguishable powers of the other two departments. Nothing is more important than to preclude government from becoming unseparated, unlimited, and tyrannical, lest constitutional self-government (the people’s control over their government) disappear.  

In Federalist No. 47, James Madison put the problem nicely: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many… may justly be pronounced the very definition of tyranny.”

We’ll see what happens with court-packing this time around.  In any event, as Thomas Jefferson himself observed over two centuries ago, the good thing about a written Constitution is that the people can always return to it (and return their government to it) if they choose.

Bill Banta is a Colorado lawyer in Arapahoe County.  He practices commercial law and litigation, real estate law, probate law, and estate planning.

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