Posted by: captainfalcon | February 5, 2011

Fun Fact

From “Selling Originalism:”

Measures were introduced during Reagan’s first term to limit federal court jurisdiction over school prayer, busing, and abortion cases and to repeal the incorporation doctrine, the exclusionary rule, and federal question jurisdiction in the district courts.

Green calls this Reagan’s “court-stripping” plan in order to evoke FDR’s court-packing plan. The analogy is apt because both involved constitutionally permissible means to eliminate the threat posed by judicial review to each president’s political program. What, you ask, is the source of each plan’s constitutionality?

The court-stripping plan is constitutional pursuant to Article III § 2’s provision that “In all…cases [except where it has original jurisdiction], the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions…as the Congress shall make.”

I’m not as clear on what constitutional provision authorizes court-packing. I think Article I § 2 is the only part of the Constitution to deal with the appointment of Supreme Court justices. It says that the President “shall nominate, and by and with the advice and consent of the senate, shall appoint…judges of the Supreme Court.” If I’m right – and I’m aware of no clause empowering Congress to set the size of the court – then the president can pack the court as long as the Senate continues to give its advice and consent to new nominees (he keeps nominating and the Senate keeps consenting). But I’m probably wrong (probably in some embarrassingly glaring way, too – which I hope MM will identify in retribution for the obnoxious comments I’ve left on some of his legal posts) because Congress set the Court’s original size in 1789 (too close to the Constitutional Convention for comfort) and its current size in the Judiciary Act of 1869:

Be it enacted by…Congress assembled, that the Supreme Court of the United States shall hereafter consist of the Chief Justice of the United States and eight associate justices.

The extremely interesting question of the constitutionality of the Judiciary Acts aside, court-packing and court-stripping are equally permissible. The court-packing scheme is generally cited to delegitimate Roosevelt, the New Deal and the constitutional regime that emerged therefrom. The court-stripping scheme was obviously less successful, but – especially given that it was directed at jurisprudence that the court-packing scheme (concerned with economic, not social, decisions) was not designed to promote – I’d have thought it indistinguishable from the perspective of political-moral legitimacy.

Update: Obviously one distinction you could draw is that court-packing was designed to curb good decisions whereas court-stripping was meant to curb bad ones. Generally, though, court-packing is criticized as evincing a disrespect for the separation of powers and judicial review – a more powerful critique given that it rests on a “neutral values” as opposed to a nakedly partisan evaluation of the court’s work that is, itself, open to the charge of disrespecting those principles.


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