Court Packing: Constitutional Principle Violation?

Court-packing is a highly contentious issue in the United States, with a long history dating back to the Roosevelt administration in 1937. The practice involves increasing the number of justices in the Supreme Court to influence how the Court resolves cases and sway decisions in favour of the ruling party. While some argue that court-packing violates the spirit of the Constitution by undermining the independence of the judiciary, others claim it is irrelevant and merely a political solution to an ideological problem. The debate revolves around the interpretation of the Necessary and Proper Clause, with court-packing potentially violating the clause if it is done with the intent to control the Supreme Court's decisions. The motivation behind court-packing is crucial, as the text and history of the Constitution do not explicitly prohibit it, leaving room for political manoeuvring.

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Court-packing: a political solution to an ideological problem

Court-packing has been a contentious issue in American politics, with some seeing it as a threat to the independence of the judiciary and others viewing it as a legitimate tool to advance their political agenda. The practice involves increasing the number of justices in the Supreme Court to change how it resolves cases and has been used or attempted at various points in history, notably by President Franklin Roosevelt in 1937. While it may not violate the letter of the Constitution, it potentially undermines the spirit of establishing an independent judiciary.

Historical Context

Court-packing is not a new phenomenon in American politics. The most famous attempt was by President Franklin Roosevelt in 1937, known as the Judicial Procedures Reform Bill. Roosevelt sought to expand the Supreme Court to appoint justices sympathetic to his New Deal policies, which the Court had previously blocked. While the bill failed, Roosevelt ultimately achieved his goal by appointing eight of the nine justices during his time in office. This episode highlights the political nature of court-packing, where the motivation is to gain control over the Court's decisions.

Constitutional Considerations

The debate around court-packing centres on its constitutionality and implications for the independence of the judiciary. While Article III of the Constitution does not specify the size of the Supreme Court, allowing Congress to change the number of justices, court-packing may violate the spirit of the Constitution by undermining the independence of the judiciary. The Roosevelt administration's attempt was criticised as an "abandonment of constitutional principle". The motivation behind court-packing is crucial, and when done to control the Court's decisions, it can be seen as an illegitimate attack on its independence.

Political and Ideological Implications

Court-packing is often proposed as a solution to ideological conflicts, particularly in the wake of democratic transitions or highly polarised political eras, such as Donald Trump's presidency. Progressives, for example, view court-packing as a way to change what the political majority believes the Constitution requires. However, it has been argued that court-packing is a political solution to an ideological problem and may not achieve the desired goal. The threat of court-packing can be influential, as it may lead to changes in voting patterns or force marginal justices to change their votes.

Alternative Approaches

Instead of court-packing, there have been discussions about implementing term limits for Supreme Court justices to address ideological concerns. While some scholars believe a constitutional amendment is necessary, others propose using an act of Congress. Additionally, in the context of democratic regime change, transitional court-packing has been employed in Europe and communist CEE judiciaries to address human rights violations and renew public trust in the rule of law.

The independence of the judiciary

Court-packing, or the act of expanding the number of justices in the Supreme Court, has been a contentious issue in American politics for decades. While some argue that it violates the spirit of the Constitution by undermining the independence of the judiciary, others claim that it is a legitimate exercise of congressional power.

Court-packing has been proposed at various times in American history, often in response to ideological disagreements with the rulings of the existing Supreme Court. One notable example was President Franklin D. Roosevelt's attempt to "pack" the Court in 1937. Roosevelt sought to increase the number of justices and appoint new members who supported his New Deal policies, which had been deemed unconstitutional by the existing Court.

The motivation behind court-packing efforts is often seen as a threat to judicial independence. By adding justices who align with their political agenda, the executive and legislative branches can exert influence over the Court's decisions. This undermines the principle of separation of powers and the check-and-balance function that an independent judiciary serves.

While the text of the Constitution does not specify a fixed number of justices, the intent of the Founding Fathers was to establish a Supreme Court that was insulated from political interference. Court-packing can be seen as a violation of this intent, as it allows the political branches to manipulate the Court's composition to serve their interests. This was evident in Roosevelt's court-packing plan, which was criticized as an "abandonment of constitutional principle" and an attempt to control the Court's decisions.

In conclusion, court-packing poses a significant threat to the independence of the judiciary. While it may be a legal exercise of congressional power, it undermines the separation of powers and the impartial role of the judiciary in interpreting the Constitution and resolving disputes. The motivation behind court-packing efforts is often indicative of a desire to exert political control over the Court, which is contrary to the spirit of an independent judiciary.

Historical precedent

In the 1930s, Franklin D. Roosevelt, then President of the United States, proposed a Judicial Procedures Reform Bill, commonly referred to as the "court-packing plan". The bill was a response to the Supreme Court's rulings that several of Roosevelt's New Deal measures were unconstitutional. Roosevelt sought to change the makeup of the court by appointing new additional justices who would, he hoped, rule in favour of his legislative initiatives.

The bill was unpopular, and it failed. Members of Roosevelt's own Democratic Party believed the bill to be unconstitutional, with the Judiciary Committee ultimately releasing a report calling it "a needless, futile and utterly dangerous abandonment of constitutional principle ... without precedent or justification". Roosevelt's plan was viewed as a threat to judicial independence and the separation of powers.

Since the US Constitution does not define the Supreme Court's size, Roosevelt believed it was within the power of Congress to change it. However, the Constitution grants Supreme Court justices life tenure, and some scholars argue that court-packing contravenes the spirit of the rule of law, including the principle of judicial independence.

While court-packing is theoretically possible, it is unlikely to achieve the desired results for progressives. Even if they were to acquire the political power necessary to successfully pack the Supreme Court, it would still fail to achieve their real goal, which is to change what the political majority believes the Constitution requires.

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Necessary and Proper Clause

Court-packing, or the act of expanding the number of justices in the Supreme Court, has been a highly debated topic in American politics. While some argue that it violates the spirit of the Constitution, others claim that it is a legitimate use of congressional power. One of the key constitutional provisions at the centre of this debate is the Necessary and Proper Clause.

The Necessary and Proper Clause, also known as the Elastic Clause, is found in Article I, Section 8 of the United States Constitution. It states that:

> "The Congress shall have Power... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

The Clause grants Congress the authority to make laws necessary and proper for executing the powers vested in the government. This includes the power to establish a Supreme Court and add positions to it. However, the Clause also requires that any law made by Congress must be "necessary and proper", which has been the subject of much interpretation.

Chief Justice Marshall, in McCulloch v. Maryland (1819), interpreted the Necessary and Proper Clause as allowing laws that are "appropriate" and "not prohibited" while also being consistent with the letter and spirit of the Constitution. He stated that:

> "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."

Applying this interpretation to court-packing, some argue that if the intent of court-packing is to control the decisions of the Supreme Court, it would violate the Necessary and Proper Clause by conflicting with the spirit of the Constitution, which establishes an independent Supreme Court. This was the case with President Roosevelt's attempt at court-packing during the New Deal, where the justification of increasing the workload capacity of the Court was seen as a means to control its decisions.

However, others argue that court-packing is a legitimate use of congressional power and does not inherently violate the Necessary and Proper Clause. They claim that the motivation behind court-packing is irrelevant and that Congress has the authority to increase the number of justices if it deems it necessary and proper.

In conclusion, the Necessary and Proper Clause is a key constitutional provision in the debate surrounding court-packing. While some interpret it as prohibiting court-packing that aims to control the Supreme Court's decisions, others argue that Congress has the authority to make such changes if deemed necessary and proper. The interpretation of the Clause's "necessary and proper" requirement remains a subject of debate and shapes the ongoing discussion about the constitutionality of court-packing.

Checks and balances

Court-packing is a term used to describe the act of expanding the number of justices in a court in order to change how the court resolves cases. While court-packing may not violate the text of the Constitution, it may undermine the spirit of the Constitution by threatening the independence of the judiciary.

The Constitution grants Congress the power to establish the court system and change the number of justices. Throughout history, the number of Supreme Court justices has changed several times. For example, in 1801, the number of justices was reduced from six to five, and in 1863 during the Civil War, the court briefly had ten justices.

However, court-packing can be seen as a threat to the independence of the judiciary and a violation of the principle of checks and balances. The principle of checks and balances is intended to prevent any one branch of government from becoming too powerful. By adding more justices to the Supreme Court, the executive and legislative branches of government could exert undue influence over the judiciary, undermining the separation of powers and the independence of the Supreme Court.

In 1937, President Franklin Roosevelt threatened to add new justices to the Supreme Court who sympathized with his policies, an act known as court-packing. Roosevelt was frustrated by the Supreme Court's rulings against several New Deal policies, including the National Industrial Recovery Act and the Agricultural Adjustment Act. His court-packing plan was opposed by members of his own Democratic Party, as well as Chief Justice Charles Evans Hughes and Justice Louis Brandeis. The Senate Judiciary Committee halted Roosevelt's court reform bill, and public support for the plan dissipated.

While Roosevelt's attempt to pack the court failed, he ultimately appointed eight of the nine justices during his time in office, demonstrating the potential for a political party to shape the Supreme Court without resorting to court-packing. The debate over court-packing highlights the importance of maintaining an independent judiciary and the delicate balance of powers between the branches of government.

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