Non-Originalism and Constitutional Arguments About Changing the Supreme Court's Size

By Daniel Epps

Friday, 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." The piece received a less-than-enthusiastic reception on Twitter from me, Orin Kerr, and others, in part due to the fact that its author himself did not seem to be making the arguments in good faith (more on that in a moment). Will Baude, however, 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.

First: why didn't more people engage with Henderson on the merits, as Will's post seemed to wish they had? Most obviously, it's because a lot of us read Henderson himself as not making an earnest argument he wanted people to take seriously. Instead, as Orin put it, it seemed like Henderson was using "a new theory of constitutional interpretation, which I believe is called own-the-libs-ism." That is, Henderson's real goal seemed to be simply to call out Democrats as hypocrites who (in Henderson's words) "aren't famous for caring so much about the plain text of the Constitution."

Given that apparent (to me, and to others) intent, the piece did not seem to demand an earnest response. And, indeed, if that reading of his intent was right, responding earnestly would just encourage more arguments like Henderson's that amount to trolling. Had he (or someone else) made his argument more seriously, I imagine the responses would have been more substantive. All that said, some people have suggested to me that Henderson really was being serious in his argument. If so, I think he could have made it much clearer than he did. But in any event, I'm not going to try to adjudicate the matter here, and I won't accuse him of bad faith without knowing more. 

And ultimately, Henderson's intent doesn't matter, for there's a deeper problem here. One of the reasons—perhaps the main reason—why progressives are seriously considering structural Supreme Court reform right now is because of the honest belief that the "other side" isn't proceeding in good faith in some deeper sense. That is, the fear that Republican-appointed judges and justices are currently using law strategically—developing plausible arguments against whatever it is that Democrats want to do, lining up behind those arguments, and using them as weapon to block any kind of progressive change. Many of us on the left believe that something like this describes the constitutional challenge to Obamacare that led to NFIB v. Sebelius; we saw the argument move from the fringe to a mainstream view in light speed. And it's hard (for us) to believe that that move wasn't a function of a lot of motivated reasoning.  

Nick Bagley made this point well in a recent piece for The Atlantic. Some key language:

Republican officeholders may have mixed feelings about [the current ACA challenge], but they will leap to convince their conservative constituents of the unconstitutionality of Medicare for All or a new Voting Rights Act or the Green New Deal. The resulting mobilization will make the Supreme Court receptive to inventive arguments that target those laws or frustrate their implementation.

Making the Affordable Care Act the centerpiece of the Barrett hearings was thus apt—not because the law itself is in serious jeopardy, but because it symbolizes the risk of giving a veto over progressive legislation to a conservative supermajority on the Supreme Court. The justices’ views about what counts as reasonable, like anyone’s, are powerfully shaped by the political debates of our time.

Given this background, many folks on the left have been counting the days until conservatives lay out constitutional arguments against changes to the Court that had heretofore widely been seen as perfectly constitutional. Moreover, this belief creates a real dilemma for how to respond to those early "off the wall" arguments. Will's view may be that academics should either (1) respond on the merits or (2) ignore. But I'm not sure that's always right. Responding on the merits has the danger of legitimizing the argument that's being made, even if you believe it's being offered in bad faith. But simply ignoring the argument doesn't seem like the right call, either, because it may let the novel argument develop steam, thereby enabling the argument to move from "off the wall" to "on the wall" quickly. Responding dismissively is, I think, a way of reasserting a norm about what should be considered in bounds in constitutional discourse. 

Perhaps those kinds of responses aren't consistent with our duties as academics. I'm not sure. But it is a real challenge. Particularly so in constitutional law, a field that is awfully hard to disentangle from politics, and where arguments by academics do seem to matter to politics, at least indirectly, in terms of shaping whether arguments are on-the-wall or not. 

All that said: one of the things I admire most about Will is that he never descends to snark or dismissiveness (which is particularly impressive given that he has a Twitter account) and that he always engages in good faith with views with which he disagrees. So I'll offer some brief thoughts on the constitutional arguments about Court-packing or Court-expansion (I'm struggling with terminological choice here, as the first phrase seems to predetermine the normative valence of the practice, but consistently using the second seems too strategic). 

The starting point is that, at least until very recently, everybody seemed to think that adding seats to the Court was legal, even if it might violate very strong norms. And that's been true even when the shoe was on the other foot, I think. Consider Richard Primus's response to Steven Calabresi & Shams Hirji's proposal to expand the lower federal courts so that they could be further filled by Republican-appointed judges. He argued that the proposal "showcases the difference between legislation that Congress has the formal authority to enact and legislation that is compatible with the small-c constitution," contending that the proposal violated only the second type of constraint (and, in the course of the argument, he makes a similar point about expanding the size of the Supreme Court). 

Where does that consensus come from? One place is constitutional text—something that matters, I think, to non-originalists, even if it isn't always decisive (and it isn't always decisive to originalists, either). If the Constitution doesn't specify the size of the Supreme Court, leaving the details to Congress, then it seems hard to imagine how Congress changing the size of the Court could possibly be unconstitutional—unless the point was to freeze in place the choice by the first Congress to set the Court's size at six. 

But of course we know that didn't happen, and the Court's size has changed at various points in American history. This history, too, seems relevant. Here, though, there's a bit of controversy. According to some readings of the history, like Primus's, all the early changes to the Court's size were "intended to affect the Court’s balance of partisan or ideological control." But others read the history differently; Henderson, as well as the 1937 Senate Judiciary Committee Report that Will cites, and Joshua Braver all argue that most of these changes lacked partisan or ideological motivation (the one that both struggle is with the removal and subsequent addition of seats to thwart Andrew Johnson). I have more sympathy for the first view but can't say I've read the history closely enough to be confident about who's right. 

Even if the latter view of the history is right—so what? 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: 

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.

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. 

For that reason, the charge of hypocrisy at the heart of Henderson's critique doesn't ring particularly true to me. Sure, Henderson has a point that there are other areas where the Court (in opinions joined by both Democratic- and Republican-appointed justices) has delivered wins for progressives that are pretty hard to square with text and original meaning (a larger set of questions I don't want to dive into here). But the charge that Democratic-affiliated constitutional thinkers equate constitutionality with policy preferences doesn't ring true, given that there are many laws and practices that people on the left seem willing to condemn as bad but constitutional.

This has been a roundabout way to answer a question that Will posed in his post. He wanted to know which path non-originalists would take in concluding that Court expansion was permissible:

1. 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.

2. 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.

3. 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 think I've ended up in bucket #2, given what I concluded about various norm-breaking practices by Republicans not violating the Constitution. Maybe there are unwritten legal constraints that I'm not thinking of that I'd concede were important, but I'm not sure. 

Will then asks:

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.

I don't speak for all or even most non-originalists, and I'm not even sure that I'm not an originalist under some definition of the term. But to the extent it means buying in to the larger aims of the conservative legal movement I certainly am not one. But I can't really give a satisfying answer to this question as to what all non-originalists think. Speaking just for myself, I think I'm probably generally against recognizing new non-textual norms, and particularly in the area of structural constitutional law, where we see far too much silly fan-fiction about the wisdom of the Founder's designs (Ahem). And newly discovered non-textual structural principles seem to be at the heart of some of the decisions I most abhor, in particular Shelby County v. Holder. In the areas where I'd be more willing to let the Court impose some limit going beyond the text—such as, say, the partisan gerrymandering context—I can tell a political process story about why the Court's intervention is needed. I can't do that in the Court-packing context, at least where the point of the Court expansion isn't to put in place restrictions that would undermine the democratic process. (Here, by contrast, I think the best argument for Court reform is to prevent the use of the courts to undermine democracy, though that's a larger conversation). 

None of this is to say that I'm firmly in favor of adding seats. But so far the response to other more "neutral" proposals, like statutory term limits or those by me and Ganesh Sitaraman, has been to argue that they are unconstitutional. Which seems to have left adding seats as one of the only options on the table for those who see a fundamental problem with the current system. 

I don't know if any arguments against the constitutionality of Court expansion will transform from attempts like Henderson's to point out liberal inconsistency into actually realistic arguments by conservatives sounding in text, original meaning, and so on that Court packing is unconstitutional. If the latter happens, though, and if those arguments ultimately lead the current Supreme Court to strike down a congressional attempt to alter its size, that would, oddly, prove that Democrats were justified in their belief that structural reform is necessary to counter a Court that will use any remotely plausible argument to defeat Democratic legislation.