The End of the Line … Corrupt Court Edition
The more I talk with people in politics and what I call the nexus between law, academia, and the judiciary, the more I see what a sea change is underway when it comes to reform of the Court. This happened in successive waves: Dobbsthe immunity decision, Callais. There are different models of reform. But I don’t know anyone who has seriously thought about the issue and thinks it is possible to carry out serious reform without expanding the Court. During these conversations, a few people raised the question: What would happen if the Court decided that a Court expansion law was himself unconstitutional? To put it a little differently, what if the Court decided that the limits on its authority that the Constitution creates, the avenues of accountability that it creates, are themselves unconstitutional.
This is both an absurd question but also, in a certain way, specific one that is important to prepare for.
The key, primordial and singular point is that the Court has no jurisdiction over the number of judges sitting on it. The Court could just as easily decide that in the future it will appoint the 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 initially decided there would be six. He then expanded it to 7, 9, and finally ten before reducing it to 9. The very existence of the Court as currently constituted, whether it has nine justices instead of three or a hundred, is a product of the power of Congress that this scenario would cause the Court to question. That’s the simple answer. The Court has no jurisdiction.
That’s where I left the question the first few times it was asked. But of course, this Supreme Court is steeped in the most profound unconstitutional corruption and abuse of power imaginable. We could not be surprised if this Court did crafting a new text in the Constitution that allowed its current members to appoint their own successors. And it would be foolish to assume that they will not attempt to revise such a law, even if they do not have the power to do so. For this Court, the fact that this is laughable, of course, does not mean much.
The answer is to specify in advance that the law is absolutely not subject to review and not even to engage in discussion. As I said, if the Court decided that it could appoint its own members, no one should consider that a serious claim. It’s identical. The Constitution gives this power to Congress clearly and explicitly. The Court cannot control the legitimacy of the foundations of its own existence. It’s simply a matter of logical principles.
The answer is to pass the law (with a trio), nominate and confirm the judges (with the same trio), and send them to the building. If Roberts and Alito want to barricade themselves in the building, sure, why not. They are coming. Get used to it. Congress and all involved should make it clear in advance that the entire matter will not be considered and that the matter will be resolved solely and entirely with the legitimate power of Congress, in concert with the consent of the President. The new judges will report to the building. Set up new chairs at the table or they will bring their own. Anyway, end of story.
On the contrary, this entire episode would be a salutary demonstration of the illegal conduct of the Court. This attempt would be illegal, unconstitutional and illegitimate and would therefore constitute a good illustration of the corruption of the Court. It doesn’t count. Don’t engage with this. Pass the law, appoint the judges and send them out.
