Prof. Joshua Braver Responding to Randy Barnett’s Argument About Court-Packing
In July, Randy blogged about his testimony on court-packing; his testimony relies on a study by Prof. Joshua Braver (Wisconsin). Prof. Braver sent along this response to Randy’s position, which I’m happy to blog:
Court-packing is constitutional. I weigh in on this matter because Randy Barnett provocatively reaches the exact opposite conclusion relying, in part, on my scholarship. Specifically, in written and oral testimony before the Presidential Commission on the Supreme Court, Barnett generously quotes and cites my article on the history of changes in the Supreme Court’s size to claim that Congress lacks the authority under the Necessary and Proper clause to change the number of seats on the Supreme Court in order to change its ideological composition.
In this blog post, I focus on how Barnett invokes my article and a key 1937 Senate report to suggest that his argument his historical roots. I have two observations. First, additional context, not included in my article, suggests that Barnett’s claim has little or no historical support and demonstrates the relative novelty of Barnett’s claim. Second, Barnett’s testimony is a self-conscious effort to mainstream what has long been an unorthodox argument. Scholars and the Presidential Commission should proceed with caution in deciding how or even whether to engage Barnett on the terms he seeks. Indeed, I fear that just by writing this blog post, I have granted Barnett a significant victory.
[I.] The Past
Randy Barnett argues that “Partisan court-packing is … unconstitutional because it violates both the letter and spirit of the Constitution.” The Necessary and Proper clause is the source of Congress’ authority to pass statutes changing the size of the Supreme Court. Drawing on the landmark 1819 case of McCulloch v. Maryland, Barnett emphasizes that the first step of any analysis must be whether “the end be legitimate.” Since packing the Court to change its ideological composition is illegitimate, partisan packing is unconstitutional. Barnett anticipates an objection: the Court’s size has changed seven times. Surely, the political animals in Congress must have enacted these changes for partisan reasons. Barnett rightly rebuts this assumption and in so doing “urge[s] the commission to consult Professor Braver’s nuanced analysis before accepting such a characterization.”
We agree! Consult my work! And I appreciate Barnett’s careful and thoughtful engagement with it. (For my full article, read here and here is a short summary.) We also agree on what that work says: In my view, there has only been one successful partisan packing of the Court—that occurred with a pair of changes during Reconstruction, one in 1866 and the other in 1869. That accounts for two of the seven alterations, leaving five more to account for. Three of those five alternations were mostly administrative and related to the now obsolete practice of circuit riding. The last two, a pair with one in 1801 and another in 1802, are another example of an attempt to pack the court. But unlike the attempt during Reconstruction, this one failed. The 1801 court-packing attempt is not a precedent because it was repealed and repudiated in 1802. Barnett in no way mischaracterizes or distorts my conclusions.
But from this point on, we diverge. We diverge on what this history tells us about the constitutionality of court-packing. There is a messy, but important division of labor between legal historians and constitutional law professors. For history to be useful to constitutional law (not just to the Supreme Court), lawyers develop and apply theories of interpretation. Barnett, at great length and over many years, has developed such a theory, filtered the facts I provided through it, and reached a conclusion. That is the way law and constitutional theory often works. My article was historical and did not address the constitutionality of court-packing in anyway. But greater familiarity with the primary sources gives me a unique vantage point to offer additional context that casts doubt on Barnett’s argument.
I cannot recall a single example of political actors arguing that court-packing is unconstitutional in the 18th or 19th centuries. To be sure, I did not read the sources with that objective in mind. I wrote in response to the upsurge in progressive advocacy for court-packing based on inaccurate historical arguments. When I wrote the article in 2019 no one in contemporary debates had yet taken the position that court-packing was unconstitutional and this was despite the proliferation of tweets, blog posts and op-eds for and against court-packing. The argument had not even occurred to me as a serious one, so I could not have used it as a self-conscious lens for engaging the historical materials. It is plausible that someone in the 19th or 20th century argued that court-packing is unconstitutional and that I missed it. But I doubt that it was a prominent argument in any of the debates and even more skeptical that such an argument was rooted in the Necessary and Proper clause. This absence is all the more striking because from th
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