Update (12 noon): I have added three additional paragraphs to explain how a decision of the Supreme Court can itself be “unconstitutional.”
I am interrupting my reflections series yet again to call out my colleague and friend Randy Barnett, a law professor who claims to be an “Originalist”, i.e. someone who believes that our courts must strictly construct the text of the Constitution. To the point, Professor Barnett has recently written a 19-page memo, available here, in which he attempts to explain why any court-packing legislation enacted by Congress to expand the number of judges on the Supreme Court of the United States (SCOTUS) would supposedly be “unconstitutional.”
Seriously, dude? Let’s put aside the historical fact that Congress has always had the power to establish SCOTUS’s size and organization (see infographic below), and the further fact that this power is perfectly consistent with the text of Article III, Section 1 of the Constitution. The main problem with Barnett’s analysis is that any attempt by five members of SCOTUS to strike down a court-packing measure would not only be nakedly self-serving; such a judicial declaration would itself be unconstitutional [*] and quite possibly produce a constitutional crisis. Court-packing might be unwise, but no, it is not unconstitutional!
[*] How can a SCOTUS decision itself be unconstitutional? First off, unless you mistakenly believe in the theory of “judicial supremacy”, the meaning of the Constitution does not depend on what five judges on SCOTUS happen to decide at any given moment in time. Instead, the text, history, and structure of the Constitution make it abundantly clear that members of Congress as well as the president also have a say in deciding what the meaning of the Constitution is. (Relatedly, to quote the immortal words of Alexander Hamilton in Federalist Paper #78, the main reason why “judicial supremacy” is wrong is because SCOTUS lacks both the power of the purse and the power of the sword.)
Furthermore, unless a challenged law creates a suspect classification (e.g., a legislative classification based on race, religion, or national origins) or restricts a fundamental right (like speech), SCOTUS generally applies something called the “rational basis test” or “clear mistake doctrine” to evaluate the constitutionality of most laws. That is to say, a given law is constitutional so long as there is some logical connection (real or imagined) between the goals of the law and the methods selected by the legislature to achieve those goals. This is an easy test to pass, and for good reason, because we don’t want SCOTUS acting like a super-legislature itself.
Lastly, let’s imagine for the sake of argument that Congress were to enact legislation expanding the size of SCOTUS to 12 or 13 members in order to allow Joe Biden to appoint a bunch of pro-abortion judges, which is what this court-packing debate is really about, by the way. Who would have standing to challenge such a court-packing law?