Is it unconstitutional for Congress to add SCOTUS seats?

[Kingpoleon]

https://nypost.com/2021/04/29/court-packing-isnt-just-a-bad-idea-its-downright-unconstitutional/amp/


I’m going out here on a limb to suggest the author doesn’t really believe what he’s saying.

[Geoffrey Howe]

To summarise the author's views from skimming through the article:

The judicial power of the United States shall be vested in the supreme court as per Art. III §1, and Congress has the ability to vest the judicial power of the United States 'in such inferior Courts as the Congress may from time to time ordain and establish'. Coupled with the Necessary and Proper clause, this gives Congress the power to change the functions, size etc. of the courts. Since there is no ordained size of the Supreme Court, Congress can decide. The author believes effectively that court packing wouldn't be a 'proper' use of Congress' Article III powers, cf. McCullloch v. Maryland: 'proper' means 'consist[ent] with the letter and spirit of the Constitution.'

This strikes me as very similar to substantive due process. I'm open to his idea.

[America Needs a 13-6 Progressive SCOTUS]

Of course not.

[America Needs a 13-6 Progressive SCOTUS]

Under the arguments made by the article, creating a Supreme Court with more than 0 seats is itself unconstitutional.

[Geoffrey Howe]

Under the arguments made by the article, creating a Supreme Court with more than 0 seats is itself unconstitutional.

No it isn’t. Under the article’s arguments, altering the size of the court once it has been established, for plainly political reasons, is.

[Donerail]

Under the arguments made by the article, creating a Supreme Court with more than 0 seats is itself unconstitutional.

No it isn’t. Under the article’s arguments, altering the size of the court once it has been established, for plainly political reasons, is.

At six members?

[Geoffrey Howe]

Under the arguments made by the article, creating a Supreme Court with more than 0 seats is itself unconstitutional.

No it isn’t. Under the article’s arguments, altering the size of the court once it has been established, for plainly political reasons, is.

At six members?

It has had nine members since 1869.

[brucejoel99]

Not only is it not unconstitutional by virtue of the Necessary & Proper Clause alone (via which - even if it were to become accepted that the Clause doesn't already implicitly grant Congress the authority to set or modify the size of the Court at-will - Congress could easily still come up with a variety of excuses to claim propriety over modifying the Court's size anyway), but increasing the size of the Court - &, indeed, decreasing it as well - for political purposes is literally not unprecedented in & of itself: the Court was decreased from 6 to 5 in 1801 to try & make sure that Thomas Jefferson wouldn't get to make an appointment, then summarily increased back to 6 in 1802 to make sure that Jefferson would indeed get to make an appointment, & increased to 10 over the years in 1807, 1837, & 1863 before being decreased from 10 all the way down to 7 to make sure that Andrew Johnson wouldn't get to make an appointment, all before the Court's current size of 9 was statutorily established under law - just as the previous size fluctuations had been - in 1869.

Honestly, opinion authors really gotta try & prove that they actually know what the word "unconstitutional" means before they're permitted to write any editorials on the matter, because otherwise, their unintelligent writings just look silly at best, & utterly, utterly stupid at worst. Seriously, if the NY Post's argument seeks to carry any weight of validity, then it'd also have to necessarily concede that none of those aforementioned increases were constitutionally valid either, that - similar to the hardcore originalist argument that WV's admission to the Union was somehow unconstitutional - the existence of the seats which are currently held by Justices Thomas, Alito, Gorsuch, & Barrett are also not legally valid since they weren't part of the original 6 seats which were established as part of the establishment of the Court itself in 1789, & that there exists a valid seat that has been vacant since 1867 & that President Biden could try & nominate somebody to fill today.

Don't get me wrong: there are legitimate viewpoints as to whether or not court-packing is just a bad idea, but one need not lie & say that it's unconstitutional. And that's what this article is: an utter bullsh*t-infused lie drawn up by News Corp.

[Geoffrey Howe]

Not only is it not unconstitutional by virtue of the Necessary & Proper Clause alone (via which - even if it were to become accepted that the Clause doesn't already implicitly grant Congress the authority to set or modify the size of the Court at-will - Congress could easily still come up with a variety of excuses to claim propriety over modifying the Court's size anyway), but increasing the size of the Court - &, indeed, decreasing it as well - for political purposes is literally not unprecedented in & of itself: the Court was decreased from 6 to 5 in 1801 to try & make sure that Thomas Jefferson wouldn't get to make an appointment, then summarily increased back to 6 in 1802 to make sure that Jefferson would indeed get to make an appointment, & increased to 10 over the years in 1807, 1837, & 1863 before being decreased from 10 all the way down to 7 to make sure that Andrew Johnson wouldn't get to make an appointment, all before the Court's current size of 9 was statutorily established under law - just as the previous size fluctuations had been - in 1869.

Honestly, opinion authors really gotta try & prove that they actually know what the word "unconstitutional" means before they're permitted to write any editorials on the matter, because otherwise, their unintelligent writings just look silly at best, & utterly, utterly stupid at worst. Seriously, if the NY Post's argument seeks to carry any weight of validity, then it'd also have to necessarily concede that none of those aforementioned increases were constitutionally valid either, that - similar to the hardcore originalist argument that WV's admission to the Union was somehow unconstitutional - the existence of the seats which are currently held by Justices Thomas, Alito, Gorsuch, & Barrett are also not legally valid since they weren't part of the original 6 seats which were established as part of the establishment of the Court itself in 1789, & that there exists a valid seat that has been vacant since 1867 & that President Biden could try & nominate somebody to fill today.

Don't get me wrong: there are legitimate viewpoints as to whether or not court-packing is just a bad idea, but one not need lie & say that it's unconstitutional. And that's what this article is: an utter bullsh*t-infused lie drawn up by News Corp.

Couldn’t one argue that those adjustments were unconstitutional, but we shouldn’t overturn them out of respect for stare decisis; but adding any more for political reasons would not be allowed? (Assuming, of course, that their original analysis is correct, of which I’m not entirely convinced.)

[brucejoel99]

Not only is it not unconstitutional by virtue of the Necessary & Proper Clause alone (via which - even if it were to become accepted that the Clause doesn't already implicitly grant Congress the authority to set or modify the size of the Court at-will - Congress could easily still come up with a variety of excuses to claim propriety over modifying the Court's size anyway), but increasing the size of the Court - &, indeed, decreasing it as well - for political purposes is literally not unprecedented in & of itself: the Court was decreased from 6 to 5 in 1801 to try & make sure that Thomas Jefferson wouldn't get to make an appointment, then summarily increased back to 6 in 1802 to make sure that Jefferson would indeed get to make an appointment, & increased to 10 over the years in 1807, 1837, & 1863 before being decreased from 10 all the way down to 7 to make sure that Andrew Johnson wouldn't get to make an appointment, all before the Court's current size of 9 was statutorily established under law - just as the previous size fluctuations had been - in 1869.

Honestly, opinion authors really gotta try & prove that they actually know what the word "unconstitutional" means before they're permitted to write any editorials on the matter, because otherwise, their unintelligent writings just look silly at best, & utterly, utterly stupid at worst. Seriously, if the NY Post's argument seeks to carry any weight of validity, then it'd also have to necessarily concede that none of those aforementioned increases were constitutionally valid either, that - similar to the hardcore originalist argument that WV's admission to the Union was somehow unconstitutional - the existence of the seats which are currently held by Justices Thomas, Alito, Gorsuch, & Barrett are also not legally valid since they weren't part of the original 6 seats which were established as part of the establishment of the Court itself in 1789, & that there exists a valid seat that has been vacant since 1867 & that President Biden could try & nominate somebody to fill today.

Don't get me wrong: there are legitimate viewpoints as to whether or not court-packing is just a bad idea, but one need not lie & say that it's unconstitutional. And that's what this article is: an utter bullsh*t-infused lie drawn up by News Corp.

Couldn’t one argue that those adjustments were unconstitutional, but we shouldn’t overturn them out of respect for stare decisis; but adding any more for political reasons would not be allowed? (Assuming, of course, that their original analysis is correct, of which I’m not entirely convinced.)

Not without being pretty intellectually dishonest, no. Only the de-facto officer doctrine would need to be invoked, as it'd allow the Court's rulings to remain valid, while still remedying the harm wrought by the appointments' deficient legality.

[Buffalo Mayor Young Kim]

Not only is it not unconstitutional by virtue of the Necessary & Proper Clause alone (via which - even if it were to become accepted that the Clause doesn't already implicitly grant Congress the authority to set or modify the size of the Court at-will - Congress could easily still come up with a variety of excuses to claim propriety over modifying the Court's size anyway), but increasing the size of the Court - &, indeed, decreasing it as well - for political purposes is literally not unprecedented in & of itself: the Court was decreased from 6 to 5 in 1801 to try & make sure that Thomas Jefferson wouldn't get to make an appointment, then summarily increased back to 6 in 1802 to make sure that Jefferson would indeed get to make an appointment, & increased to 10 over the years in 1807, 1837, & 1863 before being decreased from 10 all the way down to 7 to make sure that Andrew Johnson wouldn't get to make an appointment, all before the Court's current size of 9 was statutorily established under law - just as the previous size fluctuations had been - in 1869.

Honestly, opinion authors really gotta try & prove that they actually know what the word "unconstitutional" means before they're permitted to write any editorials on the matter, because otherwise, their unintelligent writings just look silly at best, & utterly, utterly stupid at worst. Seriously, if the NY Post's argument seeks to carry any weight of validity, then it'd also have to necessarily concede that none of those aforementioned increases were constitutionally valid either, that - similar to the hardcore originalist argument that WV's admission to the Union was somehow unconstitutional - the existence of the seats which are currently held by Justices Thomas, Alito, Gorsuch, & Barrett are also not legally valid since they weren't part of the original 6 seats which were established as part of the establishment of the Court itself in 1789, & that there exists a valid seat that has been vacant since 1867 & that President Biden could try & nominate somebody to fill today.

Don't get me wrong: there are legitimate viewpoints as to whether or not court-packing is just a bad idea, but one not need lie & say that it's unconstitutional. And that's what this article is: an utter bullsh*t-infused lie drawn up by News Corp.

Couldn’t one argue that those adjustments were unconstitutional, but we shouldn’t overturn them out of respect for stare decisis; but adding any more for political reasons would not be allowed? (Assuming, of course, that their original analysis is correct, of which I’m not entirely convinced.)

First off that’s not how Stare Decisis works. The point is that the law means what the law has been held to mean previously. You can’t just say everything up until now is ok, but now I’ve decided secret clause x applies. The whole point of a precedential system is that meanings are consistent.

Anyway, the idea that enumerated powers can’t be exercised ‘politically’ is a joke. It’s a completely unjusticiable standard that would essentially allow the Supreme Court to overturn anything, because politics is political by definition.

[Geoffrey Howe]

Not only is it not unconstitutional by virtue of the Necessary & Proper Clause alone (via which - even if it were to become accepted that the Clause doesn't already implicitly grant Congress the authority to set or modify the size of the Court at-will - Congress could easily still come up with a variety of excuses to claim propriety over modifying the Court's size anyway), but increasing the size of the Court - &, indeed, decreasing it as well - for political purposes is literally not unprecedented in & of itself: the Court was decreased from 6 to 5 in 1801 to try & make sure that Thomas Jefferson wouldn't get to make an appointment, then summarily increased back to 6 in 1802 to make sure that Jefferson would indeed get to make an appointment, & increased to 10 over the years in 1807, 1837, & 1863 before being decreased from 10 all the way down to 7 to make sure that Andrew Johnson wouldn't get to make an appointment, all before the Court's current size of 9 was statutorily established under law - just as the previous size fluctuations had been - in 1869.

Honestly, opinion authors really gotta try & prove that they actually know what the word "unconstitutional" means before they're permitted to write any editorials on the matter, because otherwise, their unintelligent writings just look silly at best, & utterly, utterly stupid at worst. Seriously, if the NY Post's argument seeks to carry any weight of validity, then it'd also have to necessarily concede that none of those aforementioned increases were constitutionally valid either, that - similar to the hardcore originalist argument that WV's admission to the Union was somehow unconstitutional - the existence of the seats which are currently held by Justices Thomas, Alito, Gorsuch, & Barrett are also not legally valid since they weren't part of the original 6 seats which were established as part of the establishment of the Court itself in 1789, & that there exists a valid seat that has been vacant since 1867 & that President Biden could try & nominate somebody to fill today.

Don't get me wrong: there are legitimate viewpoints as to whether or not court-packing is just a bad idea, but one not need lie & say that it's unconstitutional. And that's what this article is: an utter bullsh*t-infused lie drawn up by News Corp.

Couldn’t one argue that those adjustments were unconstitutional, but we shouldn’t overturn them out of respect for stare decisis; but adding any more for political reasons would not be allowed? (Assuming, of course, that their original analysis is correct, of which I’m not entirely convinced.)

First off that’s not how Stare Decisis works. The point is that the law means what the law has been held to mean previously. You can’t just say everything up until now is ok, but now I’ve decided secret clause x applies. The whole point of a precedential system is that meanings are consistent.

Anyway, the idea that enumerated powers can’t be exercised ‘politically’ is a joke. It’s a completely unjusticiable standard that would essentially allow the Supreme Court to overturn anything, because politics is political by definition.

Yes, stare decisis can entail applying the same reasoning going forth, but surely one could say one is not going to throw a fuss about something 150 years ago which is now baked into the system, but one will not allow it to happen again. Perhaps it shouldn't be called stare decisis but I think the principle is a sound one in some instances.

OK, political is the wrong word for the necessary and proper clause more generally - say business regulation - but Congress' actions towards the courts should not be politically motivated. It is hardly within the spirit of the Constitution - John Marshall's words not mine - to tamper with the courts because you don't like your opponent's appointments. The necessary and proper reasoning is quite like substantive due process; certainly it is no less legally justified than Roe v. Wade. For the record, I'm open to the article's argument, but I haven't endorsed it.

[Buffalo Mayor Young Kim]

Not only is it not unconstitutional by virtue of the Necessary & Proper Clause alone (via which - even if it were to become accepted that the Clause doesn't already implicitly grant Congress the authority to set or modify the size of the Court at-will - Congress could easily still come up with a variety of excuses to claim propriety over modifying the Court's size anyway), but increasing the size of the Court - &, indeed, decreasing it as well - for political purposes is literally not unprecedented in & of itself: the Court was decreased from 6 to 5 in 1801 to try & make sure that Thomas Jefferson wouldn't get to make an appointment, then summarily increased back to 6 in 1802 to make sure that Jefferson would indeed get to make an appointment, & increased to 10 over the years in 1807, 1837, & 1863 before being decreased from 10 all the way down to 7 to make sure that Andrew Johnson wouldn't get to make an appointment, all before the Court's current size of 9 was statutorily established under law - just as the previous size fluctuations had been - in 1869.

Honestly, opinion authors really gotta try & prove that they actually know what the word "unconstitutional" means before they're permitted to write any editorials on the matter, because otherwise, their unintelligent writings just look silly at best, & utterly, utterly stupid at worst. Seriously, if the NY Post's argument seeks to carry any weight of validity, then it'd also have to necessarily concede that none of those aforementioned increases were constitutionally valid either, that - similar to the hardcore originalist argument that WV's admission to the Union was somehow unconstitutional - the existence of the seats which are currently held by Justices Thomas, Alito, Gorsuch, & Barrett are also not legally valid since they weren't part of the original 6 seats which were established as part of the establishment of the Court itself in 1789, & that there exists a valid seat that has been vacant since 1867 & that President Biden could try & nominate somebody to fill today.

Don't get me wrong: there are legitimate viewpoints as to whether or not court-packing is just a bad idea, but one not need lie & say that it's unconstitutional. And that's what this article is: an utter bullsh*t-infused lie drawn up by News Corp.

Couldn’t one argue that those adjustments were unconstitutional, but we shouldn’t overturn them out of respect for stare decisis; but adding any more for political reasons would not be allowed? (Assuming, of course, that their original analysis is correct, of which I’m not entirely convinced.)

First off that’s not how Stare Decisis works. The point is that the law means what the law has been held to mean previously. You can’t just say everything up until now is ok, but now I’ve decided secret clause x applies. The whole point of a precedential system is that meanings are consistent.

Anyway, the idea that enumerated powers can’t be exercised ‘politically’ is a joke. It’s a completely unjusticiable standard that would essentially allow the Supreme Court to overturn anything, because politics is political by definition.

Yes, stare decisis can entail applying the same reasoning going forth, but surely one could say one is not going to throw a fuss about something 150 years ago which is now baked into the system, but one will not allow it to happen again. Perhaps it shouldn't be called stare decisis but I think the principle is a sound one in some instances.

OK, political was the wrong word. But it is hardly within the spirit of the Constitution - John Marshall's words not mine - to tamper with the courts because you don't like your opponent's appointments. The necessary and proper quite like substantive due process; certainly it is no less legally justified than Roe v. Wade. For the record, I'm open to the article's argument, but I haven't endorsed it.

But wether something is within the spirit of the constitution is inherently a political question, ie one that the courts do not and should not engage with.  Applying a standard meant for personal liberties and applying to basic intergovernmental functions just creates a world where a court can arbitrarily overrule any governmental action based on the personal feelings of the justices. By this standard a court could, for instance, nullify federal budgets because they find them not within the spirit of congressional spending power.

In any event substantive due process is about the protection of unenumerated rights. People have unenumerated rights branches of government don’t. In any case it’s unclear just who would have standing to sue over what amounts to a staffing change.

[brucejoel99]

In any case it’s unclear just who would have standing to sue over what amounts to a staffing change.

Not really. Accepting the extension of the Post's ludicrous logic that entails that any modification to Court beyond its initial 6 seats was illegal & that Justices Thomas, Alito, Gorsuch, & Barrett's seats are invalidly held, anybody who's ever litigated a case before them would potentially be a plaintiff & presumably seek to litigate the constitutionality of their seats on the Court, with the justices in question likewise being the named respondents in their official capacity.

[Amenhotep Bakari-Sellers]

Feinstein already gave cover to almost 10 D's that says Crt packing should not be done Durbin, Hassan, Shaheen, Manchin, Sinema, CCM all said they were against Crt packing, can we get over this akready

If an R Prez come along he would most likely subtract the seats that D's made, without the Filibuster

It's gonna stay at 9, that gave Biden the Election over Trump with dispute

It's not unconstitutional, Marbury v Madison, Marshall said Congress can expand or limit Crts Appellate not original jurisdiction

[Kingpoleon]

Yes, stare decisis can entail applying the same reasoning going forth, but surely one could say one is not going to throw a fuss about something 150 years ago which is now baked into the system, but one will not allow it to happen again. Perhaps it shouldn't be called stare decisis but I think the principle is a sound one in some instances.

OK, political is the wrong word for the necessary and proper clause more generally - say business regulation - but Congress' actions towards the courts should not be politically motivated. It is hardly within the spirit of the Constitution - John Marshall's words not mine - to tamper with the courts because you don't like your opponent's appointments. The necessary and proper reasoning is quite like substantive due process; certainly it is no less legally justified than Roe v. Wade. For the record, I'm open to the article's argument, but I haven't endorsed it.

I’d recommend reading John Hart Ely’s “The Wages of Crying Wolf” for why “no less legally justified than Roe” is damning with faint praise.

[Amenhotep Bakari-Sellers]

Everyone knows that if you get a 7/6 majority the Crt would Federalize SSM, the Crt isn't gonna be packed

[SteveRogers]

Everyone knows that if you get a 7/6 majority the Crt would Federalize SSM, the Crt isn't gonna be packed

What?

[politicallefty]

Absolutely not. The Constitution grants Congress wide latitude as to the composition of the judicial branch. Article III authorizes "one supreme Court" and "inferior Courts as the Congress may from time to time ordain and establish". I would say the text of the Constitution permits a Supreme Court of simply one Justice. The only constraints are that all judges "shall hold their Offices during good Behaviour" and that their salaries cannot be reduced. Where the Constitution is silent, authority is granted to Congress, the states, or the people (depending on the particular situation).

To be honest, this isn't that different from how the executive branch exists. Most of the executive branch is a creation of law. I don't believe there's anything prohibiting Congress from abolishing most of the executive branch, apart from the President and Vice President. Congress is free to change the executive departments as it sees fit. Cabinet Departments have been created, abolished, and reorganized.

Even Congress itself is a creation of law in terms of size. The Senate's membership is defined by the number of states. Congress has full authority of the creation of new states. That would require the consent of the states in question to reduce the total number. The only stipulation as to the minimum number of the House is that each state must have at least one Member. Technically, the size of the House could be set at 50.

[Geoffrey Howe]

Yes, stare decisis can entail applying the same reasoning going forth, but surely one could say one is not going to throw a fuss about something 150 years ago which is now baked into the system, but one will not allow it to happen again. Perhaps it shouldn't be called stare decisis but I think the principle is a sound one in some instances.

OK, political is the wrong word for the necessary and proper clause more generally - say business regulation - but Congress' actions towards the courts should not be politically motivated. It is hardly within the spirit of the Constitution - John Marshall's words not mine - to tamper with the courts because you don't like your opponent's appointments. The necessary and proper reasoning is quite like substantive due process; certainly it is no less legally justified than Roe v. Wade. For the record, I'm open to the article's argument, but I haven't endorsed it.

I’d recommend reading John Hart Ely’s “The Wages of Crying Wolf” for why “no less legally justified than Roe” is damning with faint praise.

Damning with faint praise it is. I wonder how many here approve of Roe.

[Geoffrey Howe]

But wether something is within the spirit of the constitution is inherently a political question, ie one that the courts do not and should not engage with.  Applying a standard meant for personal liberties and applying to basic intergovernmental functions just creates a world where a court can arbitrarily overrule any governmental action based on the personal feelings of the justices. By this standard a court could, for instance, nullify federal budgets because they find them not within the spirit of congressional spending power.

As if the Constitution doesn't require the Court to meddle in inherently political matters?

If substantive due process is acceptable, why is this not? The necessary and proper idea at least has a quote from John Marshall to back it up, for what it's worth.