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Reason Magazine Commentary: Court Packing Unwise but Constitutional
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This opinion article from Reason Magazine, authored by Damon Root, argues that while court packing—adding new justices to the U.S. Supreme Court—is a bad policy idea, it is nonetheless constitutional. The author cites Article III, Section 1 of the U.S. Constitution, which vests judicial power in 'one supreme Court' and allows Congress to 'ordain and establish' inferior courts, but does not specify the number of justices. Root counters a Wall Street Journal op-ed that claimed court packing would undermine separation of powers and judicial independence, noting that the op-ed itself conceded Congress has authority over the judiciary's structure. The author draws parallels to other unwise but constitutional actions, such as Congress passing economically harmful tariffs or regulating the Supreme Court's appellate jurisdiction in a partisan manner. The central thesis is that not every unwise political idea is unconstitutional, and court packing, though unwise, remains within Congress's lawful sphere.
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Article III, Section 1, of the U.S. Constitution states that "the judicial Power of the United States shall be vested in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." The document says nothing about how many justices should sit on the Supreme Court, leaving that decision entirely in the hands of Congress.
For advocates of court packing—or court expansion, or whatever label the idea currently goes by—this constitutional language is a handy ally and a clear legal authority to cite. Whether you support court packing, oppose it, or remain agnostic, there is no doubt about its constitutionality.
You're reading Injustice System from Damon Root and Reason. Get more of Damon's commentary on constitutional law and American history.
A Counterargument Emerges
Or is there doubt? A recent Wall Street Journal op-ed attempted to argue that court packing is in fact unconstitutional because "it would undermine the separation of powers and the independence of the judiciary."
I agree that court packing is a bad idea. (My views are spelled out at length in this February 2021 Reason cover story.) But I do not find the legal argument in the op-ed persuasive. In fact, the op-ed undermined its own case at the outset by conceding the following:
"Article III establishes 'one Supreme Court,' and Article I mentions 'the Chief Justice,' but otherwise the Constitution leaves to Congress the authority to establish the structure of the federal judiciary, including the number of justices."
Unwise vs. Unconstitutional
It is worth remembering that not every unwise idea in American politics is also an unconstitutional idea.
- Example 1: Article I, Section 8, grants Congress the authority "To lay and collect Taxes, Duties, Imposts, and Excises." When President Donald Trump tried to usurp this power by unilaterally imposing tariffs on much of the world, that was unconstitutional because Trump sought to wield tariff-making powers the Constitution did not assign to him. But if Congress had duly passed its own slate of economically harmful tariffs, there would be no comparable constitutional case against them—because Congress would have been acting within its lawful sphere.
- Example 2: Article III, Section 2, subjects the Supreme Court's appellate jurisdiction to "such Regulations as the Congress shall make." I happen to think that if Congress ever regulated the Court's appellate jurisdiction in an overly partisan manner, such a regulation would harm the independence of the judiciary. Yet that congressional power, as dangerous as it may be when used in such a fashion, is still present in the Constitution.
Like it or not, court packing—though unwise—remains constitutional.
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