The latest arguments for Court-packing are nothing but a lawless mask for power that would destroy the rule of law.
The latest arguments for Court-packing are nothing but a lawless mask for power that would destroy the rule of law.
T he Senate’s leading conspiracy theorist, Sheldon Whitehouse (D., R.I.), is once again targeting the independent judiciary and the rule of written law for destruction. On Wednesday, along with Cory Booker (D., N.J.) and Alex Padilla (D., Calif.), Whitehouse reintroduced the “Supreme Court Biennial Appointments and Term Limits Act.” The bill is structured to expand the Supreme Court to a maximum of 18 justices, with presidents appointing new justices in the first and third years of their terms without a vacancy on the Court. Moreover, in order to hasten the end of the current conservative majority, it would sideline the most senior current justices from ruling on most of the Court’s docket, effectively stripping them of the powers that every justice since 1790 has exercised.
The effort to seize power from sitting justices is an unconstitutional and unprecedented assault on 236 unbroken years of American constitutional tradition. This is radical and dangerous. It is orders of magnitude more destructive of the very heart of our American system than anything Donald Trump has ever done, and worse than anything he has ever attempted — including trying to overturn a presidential election. Whitehouse isn’t just trying to steal the results of one election or one case, but to permanently break the system as it has existed since George Washington’s day. He would bring a conclusive end to any argument that the rule of law in America is anything but a mask for power. Future Americans would come to treat the belief in the rule of law as an antique superstition.
There’s no pretense that this is anything but a partisan power grab. Whitehouse’s bill is, predictably, designed to be effective at the start of the next presidential term, on the theory that throwing out two centuries of how the Court has operated is an emergency, but not so much of an emergency as to justify giving the power to pack the Court to Donald Trump. (This should not surprise us, coming from a man who under Joe Biden called for presidential lawmaking by what he then dubbed “executive beast mode.”) It predictably targets the longest-tenured justices, which at present means Justices Clarence Thomas and Samuel Alito and Chief Justice John Roberts. This is by design. Whitehouse thus illustrates that what I wrote about Court-packing in all of its guises in 2024 is still true today:
The sole reason we are talking about restructuring the Supreme Court is that liberals and progressives are unhappy with the outcomes of its decisions. That’s the thing. It’s the whole thing. It’s the only thing. It’s the entirety of the thing. It’s 100 percent of the thing. There’s no other thing. And if you are endeavoring now to make a purportedly conservative (or at least non-ideological) case for restructuring, you need to first explain why it is that liberals and progressives being unhappy with outcomes is, in and of itself, a crisis. Why is it not a permissible result of a political process that liberals and progressives get something they dislike? Why is that not legitimate? Why, specifically, does it change the legitimacy of a system that was acceptable when it delivered outcomes that liberals and progressives liked?
As usual, this is all dressed up in Whitehouse’s signature allegations of a grand shadowy conspiracy, “an organized, dark-money funded scheme by right-wing special interests to capture and control the Court. . . . Right-wing billionaires, the fossil fuel industry, and other special interests have spent hundreds of millions to capture the Supreme Court by dictating who gets appointed to the Court and building a flotilla of front groups to influence how those appointees rule.” Whitehouse intends to counter this by . . . following the strategy laid out by an outside group, the Brennan Center for Justice, which has a representative on the New York Times editorial board promoting those arguments days ahead of Whitehouse’s announcement. But then, doing what his backers tell him to do is as much Whitehouse’s M.O. as are his charges against everybody else.
An Unconstitutional Grab for Power
Article III states that “the Judicial Power of the United States, shall be vested in one supreme Court,” singular, and states that “the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office” (emphasis added). “Judges of the supreme Court, and all other Officers of the United States” shall be appointed by the president with the advice and consent of the Senate. It has always been universally agreed and understood that “during Good Behaviour” means life tenure. Alexander Hamilton said so in Federalist No. 78. Our entire political system has accepted that as settled ever since.
The Brennan Center claims that it has found one weird trick, never considered before, to get around 236 years of American constitutional history. The theory is that the sitting justices can be stripped of hearing cases that arrive via the Court’s appellate jurisdiction (most of its docket) but haven’t lost their Article III life-tenured “Offices” because (1) they will still be paid, (2) they can still sit on the small number of original jurisdiction cases, such as suits between states (never mind the incentives this would create for more efforts to invoke and expand original jurisdiction), and (3) they can still perform other duties, such as those assigned to the chief justice by the Constitution, or circuit justice duties, or filling in during recusals, or “administrative or managerial responsibilities” like picking out the drapes or something.
Some proposals of this nature have reassigned justices to lower courts after a fixed period of time, or ousted the chief justice from being chief justice. The Whitehouse proposal, at least, avoids this pitfall, given that the Constitution treats the “Office” of being a Supreme Court justice as a distinct one from that of lower court judges, and assigns some roles only to a single chief justice.
Nonetheless, the plan is unconstitutional. As much as Court-packing represents an existential threat to our constitutional order, the Constitution doesn’t actually forbid it. But it does forbid this, for three main reasons.
First is the constitutional text. Article III speaks of “one supreme Court” composed of holders of one “Office”: “Judges of the supreme Court.” The only distinction acknowledged is that “the Chief Justice” presides over impeachment trials of the president. No further division is suggested. Nowhere else in the Constitution — not the House, not the Senate, not the president or vice president — do we find an office created by the Constitution that can then be statutorily subdivided into two classes holding different powers. Under the Brennan Center’s theory, a statute can strip from some but not all holders of the office of “Judges of the supreme Court” not only some of the office’s power, but the most important and central of those powers.
The fig leaf presented to justify this is Booth v. United States (1934). Booth involved the system for pensions for retired federal judges. Under the retirement statute, a judge — now including a Supreme Court justice — can become a “retired” judge without resigning from the bench. A retired judge can still hear cases if he chooses, but is not obliged to do so, and if the judge is on a federal appeals court, he is excluded when the court sits en banc. The Court in Booth was asked to decide whether retired judges still hold a judicial “office” such that their pensions could not be reduced under Article III.
A unanimous Court in Booth said yes:
By retiring pursuant to the statute a judge does not relinquish his office. The language is that he may retire from regular active service. The purpose is, however, that he shall continue, so far as his age and his health permit, to perform judicial service. . . .
It is a contradiction in terms to assert that one who has retired in accordance with the statute may continue to function as a federal judge and yet not hold the office of a judge. The Act does not and, indeed, could not, endue him with a new office, different from, but embracing the duties of the office of judge. He does not surrender his commission, but continues to act under it. He loses his seniority in office, but that fact, in itself, attests that he remains in office.
Now, first of all, it should be noted that Booth was a decision protective of judges. Crucially, it involved Congress creating a voluntary deal that members of a coordinate branch could accept. Nobody was compelled against their will to take retired status. The broadest language in the decision emphasized that Congress was permitted to reduce the job a judge is required to do, not to bar the job a judge is empowered by the Constitution to do:
The Government argues that the holding of an office involves the performance of duties, and since no duties are obligatory on one who has retired under the Act, he cannot be said to hold any office. But Congress may lighten judicial duties, though it is without power to abolish the office or to diminish the compensation appertaining to it.
It is true, as the Brennan Center memo notes, that some duties of a Supreme Court justice have been altered by Congress over time, such as abolishing circuit-riding or eliminating some kinds of mandatory jurisdiction. But these were changes to the duties of the office or the Court as a whole; no example is cited of Congress creating a second class of justices lacking the full powers of other holders of the same office.
Second is the function of life tenure. The Court does not decide constitutional questions based on some amorphous “spirit” of the Constitution, but it is acutely alive to questions of structure and function in assessing separation of powers and federalism. The presidential immunity decision, for example, was grounded in the observation that Congress can’t indirectly strip the president of Article II powers by making it possible to prosecute the president criminally for how he or she chooses to exercise those powers. Likewise, Trump v. Slaughter reflects the Court’s understanding that executive power requires the executive to control the people who carry those powers, while the major questions doctrine assumes that Congress doesn’t give away its own powers without saying so.
Hamilton, in Federalist No. 78, identified two reasons for life tenure. First was judicial independence: “That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.” The other was that life tenure was a powerful incentive to attract the best people to the Court:
There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. . . . [It] must demand long and laborious study to acquire a competent knowledge of [all the laws and precedents]. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges . . . the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. . . . A temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified.
The mere fact of a secure pension is not a sufficient inducement. The early history of the Court illustrated that dramatically: With little of interest or influence to occupy their time, many of the early justices quit, including the first chief justice, John Jay. Only after Chief Justice John Marshall established the Court’s place in the system did justices make a career out of the Court. As I’ve detailed before, giving justices an incentive to quit the bench after 18 years would create more rather than fewer ethical problems, as justices who had not reached an advanced age could angle for more lucrative positions once they could no longer sit on most of the cases on the docket.
Whitehouse quotes the Brennan Center’s complaint that “the United States is one of just five countries with life tenure for its highest court.” We’re also the only one with the U.S. Constitution. The fact that our system is unique in the world is supposed to be one of its great boasts. No other country could have produced Brown v. Board of Education.
Third is constitutional tradition. Nothing like this has been suggested before, and the Court-packing plan of the 1930s was rejected by the system like an invasive virus. In cases such as Chiafalo v. Washington (2020), involving state power to tell presidential electors what to do, the Court has recognized that extremely longstanding settlements accepted by all the actors in the constitutional system should be accepted by the Court as part of the meaning of the Constitution. There are those who criticize this as a post hoc approach; sometimes, precedents are wrong. But things that are really wrong have usually been controversial at some point. Where all the players in the system have accepted one set of rules without controversy for two centuries and built the entire system of politics and law around them, a Court devoted to a stable system will rightly be hesitant to overturn that — especially when the Court is being asked to commit institutional seppuku.
Oh, and one last problem: It’s a small thing in comparison to the rest, but the bill may also be unconstitutional in mandating that a president must select a Supreme Court nominee within 120 days of the start of the first and third years of his or her term, and must send up a replacement nominee within 120 days of any such appointment being withdrawn or rejected. That’s a small thing because presidential incentives to make appointments are such that it’s highly unlikely there would be a challenge to Congress purporting to dictate when the president may make an appointment.
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Finally, we should be clear-eyed about what happens if Democrats go all the way down this road. One of the major meta-arguments on the right throughout the Trump era has been about playing by the rules. The rules are for suckers, say the MAGA populists; they’re a charade designed to keep liberals and progressives in power, at least every power that really matters. The system is heads-I-win, tails-you-lose. They’ll never let us really win. So, we should take back what we deserve, even if that looks like January 6.
To all of this, conservatives have had a number of responses, but Exhibit A has been the Supreme Court. We’ve played by the rules and played the long game. We changed the Court and its approach to the law by playing the outside game the right way — winning presidential and Senate elections and building grassroots groups to pressure and petition elected officials — and by playing the inside game the right way, training elite talents in elite institutions and developing a scholarly theory of legal legitimacy and patiently laying out a winning argument for constitutional governance. The handful of nuts who tried to stop Roe v. Wade by violence in the 1990s did not get anywhere; it took 49 years, but the people who played by the rules finally did.
And now, the message from Democrats is: You suckers, we’re changing the rules to take away what we can’t win within the existing system. What Whitehouse is selling is every MAGA fever dream come true. People on the left side of the political spectrum don’t grasp how immensely destructive this would be because they don’t have these arguments within their own side: Whatever Henry Fonda platitudes about the law may have once animated liberals, they have all long since given over their party and movements to the Foucaultian view that rules are nothing but masks for power and written law all comes down to the rule of Humpty Dumpty: that a word can mean whatever you want it to mean, and all that matters is who is to be master. Nobody on the left spends any time convincing their own side that they should play by the rules even if it means they lose.
If they pull this off, then the argument on the right for accepting defeat within the rules of the constitutional system will be robbed of their audience. Progressives may enjoy that, because within elite circles, they’d much rather argue with MAGA. But in the long run, they won’t much like how it goes for them. When you start lighting forest fires, you don’t know what will get burned down.