One of the main questions leading up to the election was whether the Democrats wanted to pursue threats to grab the Supreme Court in response to President Trump’s appointment of three judges. With Republican control of the Senate increasingly likely, this issue could become moot for the time being. But there is certainly no guarantee it will disappear from the Democrats’ rhetorical playbook. One question about the prospect hasn’t got the attention it deserves: is the court wrapping even constitutional?
My views on the constitutionality of court wrapping have evolved. I have always believed that under the original meaning of the Constitution it is clearly constitutional, although it is a harmful practice that should be strongly opposed. But I changed my mind. I now believe it is unclear whether court wrappings are constitutional below the original meaning. While my argument does not have a clear conclusion, the possibility that court packaging is unconstitutional is significant as virtually everyone else thinks it is constitutional.
When I first wanted to write on this subject, my position was that originalism allowed packing in court, but that it was not clear why non-originalists considered it constitutional. However, Will Baude hit me hard on this one (and I highly recommend his contribution). The originalist argument for packing in court is pretty simple: the Constitution gives Congress the power to increase the number of Supreme Court Justices, and it doesn’t seem to limit the reasons why Congress might increase that number. Therefore, Congress can increase the number of Supreme Court justices even if its purpose is to change the way the Supreme Court resolves cases.
While this argument suggests that originalism allows packing in court, it is not clear why non-originalists in general seem to accept its constitutionality as well. Often times, non-originalists do not feel constrained by the constitutional text and instead often rely on modern political principles. Until the recent surge in democratic support for court packing, most constitutional attorneys believed it was an illegitimate attack on the independence of the Supreme Court. It is not clear why this apparently non-textual political principle is entitled to less respect by non-originalists than many of the other principles they accept, such as “one person, one vote”. As Baude says, it would be good to know what the specific non-originalist argument is. (For some thoughts from a non-originalist, see Daniel Epps’ analysis here.)
But I’ve now changed my mind about the originalist analysis of the court packaging. The Constitution doesn’t simply say that Congress can add additional judges to the Supreme Court. Instead, it gives Congress that power through the necessary and correct clause. Congress has the power to “make all laws necessary and appropriate to carry out the execution. . . all other powers conferred by this Constitution. . . in the United States government, or in any department or official thereof. “As the Constitution creates a Supreme Court, Congress can help put the Supreme Court’s authority into practice by adding positions to the Court.
While Congress can add positions, it can only do so if its law is “necessary and right”. And this is where the topic becomes interesting. It is not clear what the original meaning of the necessary and appropriate authority of Congress is. While Congress would have the power to go to court on reasonable grounds, it would not have that power on other reasonable grounds.
In particular, the question arises as to which restrictions are “necessary and correct”. The “necessary” component is often seen as the means-end link that Chief Justice Marshall discussed in McCulloch versus Maryland. How strict the means-ends must be is an important and difficult question, but that is not the central issue here, as it is evident that the establishment of additional offices can help put the Supreme Court’s authority into practice .
Rather, the meaning of “right” is of central importance here. One possibility is that right doesn’t add anything to the necessary. Rather, the two terms should be read together, as they require the examination of means and end discussed in McCulloch. This has been the most important (but not the only) way the Supreme Court has interpreted the clause in modern times.
But there are other possible interpretations of Eigen. An important understanding of one’s own is that it requires that the Legislative Congress not violate the spirit of the Constitution. The idea is that the “necessary” means-end power can be extremely broad, which would allow Congress to undermine important constitutional principles such as federalism and separation of powers. Hence, the word “right” was added to require that this “necessary” authority not violate the spirit of the Constitution. In this way, Congress could not use its necessary authority to undermine the constitution.
Significantly, support for this interpretation comes again from McCulloch, where Chief Justice Marshall summarized the importance of necessary and appropriate authority as follows: “The aim is legitimate, be within the constitution and by all means appropriate, clearly state it adapted for this purpose, which are not forbidden but exist with the letter and spirit of the constitution, are constitutional ”(emphasis added). So Marshall himself seemed to realize that laws inconsistent with the spirit of the Constitution violated the necessary and proper clause.
Then what is the spirit of the constitution and how does it differ from the letter of the constitution? The constitution letter refers to the constitutional text. In contrast, the spirit refers to the values on which the text is based and which are reflected in intent, purpose or structure. Thus something is against the spirit but not the text of the Constitution when it conflicts with the intent, purpose, or structure of the Constitution.
Court wrappings – understood as a law that increases the number of judges to change the way the court resolves cases – can go against the spirit of the constitution. Such a law would not exercise the judiciary (and therefore would not violate the writing of the Constitution) as it would only add seats and then allow those seats to be appointed.
But it could violate the spirit of the constitution. Congress would exercise its broad authority over the number of seats to control the decisions of the Supreme Court. This would undermine the purpose and structure of the constitution’s establishment of an independent Supreme Court. If Congress could simply increase the number of seats in the Supreme Court, the Court would not be independent.
In contrast, Congress could increase the number of seats in the Supreme Court so that the spirit of the Constitution is not violated. For example, if Congress felt that the existing number of judges could not keep up with the workload or that a larger number would lead to more accurate decisions, the expansion of the Supreme Court would be entirely constitutional.
This distinction between laws intended to grab the court and laws intended to regulate its operations was implicitly recognized by the infamous court wrapping scheme proposed by the Roosevelt administration during the New Deal. The Roosevelt administration claimed it would increase the size of the Supreme Court for legitimate reasons – because the senior judges could not keep up with the workload – but that justification fooled anyone. Everyone understood that the real reason was to control the decisions of the Supreme Court.
If these interpretations of the required and proper clause and the constitutional spirit are correct, the trial held to review the decisions of the Court of Justice will be contrary to the required and proper clause.
I am not sure that this interpretation of the necessary and correct clause is correct. I’m not sure it’s wrong either. I think that is a perfectly plausible interpretation. And therefore it is plausible that the packaging of dishes is unconstitutional in violation of the necessary and proper clause.