Packing the Supreme Court has quickly moved to the political front burner. But the only urgency seems to be creating a court majority that would rubber stamp whatever Democrats want to do with federal power, which was rejected when FDR tried it, despite a more than three-quarter Democrat majority.
Adding justices is a possibility, since the U.S. Constitution does not specify the number of Justices. The current total derives from the Judiciary Reform Act of 1869, so all it would take is a change in that law. But if you believe that the limits the Constitution was designed to place on federal over-reaching are important, it us beyond unwise. It is foolhardy.
Court packing could hardly contrast more sharply with one of the most cited authorities on the intended constitutional role of the courts, Alexander Hamilton’s Federalist 78: “The judiciary…can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment.” Consequently, “The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because the least in a capacity to annoy or injure them.”
Federalist 78 argues that courts are empowered only to do what seems diametrically opposed to court packers’ goals: “The courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.”
That means, “The complete independence of the courts of justice is peculiarly essential in a limited Constitution…Limitations of this kind can be preserved in practice no other way than through…courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”
The main purpose of the court was “to be an intermediate body between the people and the legislature…to keep the latter within the limits assigned to their authority.” That protective function requires that, “Where the will of the legislature, declared in its statues, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”
The purpose of making the courts a Democratic Party adjunct would eliminate their role as a crucial balance wheel in the separation of powers. Federalist 78 warned in no uncertain terms how serious it would be. “Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments,” it argues.
Of course, Anti-Federalists, who feared that the Constitution’s checks would be undermined by expansive court interpretations, enabling a federal government with unwarranted and undelegated powers, leading to the adoption of the Bill of Rights, said it even more strongly.
As Anti-Federalist writer Brutus put it, rather than relying on constitutional grounds for rulings, the court would create them “by their own decisions,” through manipulating the meanings of vague clauses. It would adopt “very liberal” principles of interpretation, extremely perilous for a nation founded on the consent of the governed. It could easily invent “creative” rulings which would be backed with “the force of law.”
The current court packing proposal stands sharply at odds with our founders. It violates the most famous of the Federalist Papers on the courts, Federalist 78. It would also justify an “I told you so” from Anti-Federalists. That is, both sides of the constitutional ratification debates rejected the purposes Democrats court packers have in mind.
If the vision that formed our country is to be consulted at all, court packing that would undermine the Supreme Court’s central role is a bad idea whose time should never come.
Gary M. Galles is a professor of economics at Pepperdine University.
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