The more I speak with people both in the political world and in what I’ve called the legal academic-judicial nexus, the more I see just what a sea change is underway about Court reform. It’s come in successive waves: Dobbs, the immunity decision, Callais. There are various models of reform. But I don’t know anyone who has seriously considered the matter who thinks that you can have serious reform without expanding the Court. In these conversations, a few people have raised the question: what if the Court rules that a Court expansion law is itself unconstitutional? To put it slightly differently, what if the Court decides that the limits on its authority the Constitution creates, the paths for accountability it creates, are themselves unconstitutional.
This is question that is once absurd but also in a certain specific way important to prepare for.
The key, overriding and singular point is that the Court has zero jurisdiction over the number of judges who serve on it. The Court might as well decided that going forward it will appoint members of the Court itself. The Constitution clearly and explicitly gives Congress the power to choose the number of Justices who will serve on the Supreme Court. Congress first chose that there would be six. It then expanded it to 7, 9 and finally ten before changing it back to 9. The very existence of the Court as currently constituted, that it is nine Justices rather than three or one hundred, is the product of the Congress’s power which this scenario would have the Court questioning. That’s the simple answer. The Court lacks any jurisdiction.
That’s where I left the question the first few times it was raised to me. But of course this Supreme Court is steeped in the deepest anti-constitutional corruption and abuses of power imaginable. We couldn’t be surprised if this Court did manufacture new text in the Constitution that allowed its current members to appoint their own successors. And it would be folly to assume they might not try to review such a law, despite lacking any power to do so. For this Court the fact that it’s laughable, admittedly, doesn’t mean much.
The answer is to make clear in advance that the law is fully un-reviewable and not even entertain the discussion. As I said, if the Court decided it could appoint its own members no one should entertain that as a serious claim. This is identical. The Constitution gives Congress this power clearly and explicitly. The Court can’t review the legitimacy of the basis of its own existence. That is simply a matter of logical principles.
The answer is to pass the law (with a trifecta), nominate and confirm the justices (with the same trifecta) and send them over to the building. If Roberts and Alito want to barricade themselves in the building, sure, why not. They’re coming. Get used to it. Congress and everyone involved would have to make clear in advance that the whole question will not be entertained and that the matter will be settled solely and entirely with the legitimate power of Congress, in concert with the assent of the president. The new justices will show up up at the building. Pull up new chairs at the table or they’ll bring their own. Either way, end of story.
If anything the whole episode would be a salutary demonstration of the Court’s illegal conduct. The attempt would be illegal, unconstitutional and illegitimate and thus a good illustration of the Court’s corruption. It doesn’t count. Don’t engage with it. Pass the law and nominate the judges and send them over.
