At Volokh Conspiracy, Randy Barnett: Court Packing is Unconstitutional - A law changing the number of justices to affect the Court's decisions is neither necessary nor proper, (The post summarizes and quotes Professor Barnett's testimony to the Presidential Commission on the Supreme Court, delivered at its public meeting on Tuesday). From the introduction:
To appreciate the constitutional problem, we first need to locate the power that Congress is exercising when it sets the number of justices. It is the Necessary and Proper Clause, which empowers Congress to make a law that is necessary and proper to carry into execution the judicial power that Article III vests in the judicial department.
Article III does not specify the size of the Court, but for the past one hundred and fifty-two years, a nine-member Supreme Court has become an entrenched constitutional norm. To change the Norm of Nine, Congress needs to pass a new law. According to the letter of the Constitution, any such law must be both "necessary" and "proper."
In his opinion as Treasury Secretary on the constitutionality of a national bank, Alexander Hamilton offered the following test of a law's necessity: "The relation between the measure and the end; between the nature of the mean employed toward the execution of a power, and the object of that power must be the criterion of constitutionality." Today, we call this the requirement of means-end fit. A law must have an appropriate "end" or "object" and "the means" it adopts must be sufficiently related to that end.
In McCulloch v. Maryland, Chief Justice John Marshall elaborated on this test when he wrote,
Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.
Of utmost importance is this how Marshall's rule of construction starts: "Let the end be legitimate…." Having set the number of justices, Congress may not then enact a law to change that number for the illegitimate end of affecting how the Court rules. That such an end is illegitimate is evidenced by the rationales for court expansion offered by FDR in the 1930s and by House Democrats today. These rationales are mere pretexts for the illegitimate end of changing how the Court rules in particular cases.
Posted at 6:43 AM