Is Court Packing Constitutional?

One of the major issues in the run-up to the election was whether Democrats planned to follow-through on threats to pack the Supreme Court in response to President Trump’s appointment of three justices. As Republican control of the Senate appears more and more likely, this issue may become moot for now. But there is certainly no guarantee that it will disappear from the Democrats’ rhetorical playbook. One question about the prospect has not received the attention it deserves: Is court packing even constitutional?

My views on the constitutionality of court packing have evolved. I used to believe that it was clearly constitutional under the Constitution’s original meaning, even though it was a pernicious practice that should strongly be resisted. But I have changed my mind. I now believe that it is unclear whether court packing is constitutional under the original meaning. Although my argument does not have a clear conclusion, the possibility that court packing might be unconstitutional is significant because virtually everyone else seems to think it is constitutional. Read Full Article »