Part Three: ELECTION LAW — Court Packing Unconstitutional or Not

Shifting to the presidential election of 2020, an issue of “court packing” has made recent headlines. Today’s topic discusses court packing, unconstitutional or not. Part three of a series on election law, with this and other posts raising issues worth considering in advance of the upcoming Presidential election.


We begin with the oft-unmentioned branch of government: the judiciary.

The courts — or shall I say, the Supreme Court of the United States — were expressly provided for in Article III of the Constitution.

There, “The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

So if federal law is the supreme law of the land, the Constitution allowed for the vesting of judicial power in the Supreme Court.

But not for all disputes.

Indeed, the federal courts are courts of limited jurisdiction. Cases are limited to those between the states or that meet jurisdictional threshold tests (such as the type of controversy and the amount in dispute).

Your federal court won’t handle your run of the mill neighborly dispute any more than your speeding ticket.

But the federal court can and will decide the merit of overarching matters that affect you, the voter, on everything from immigration to healthcare to voting. This too also depends. The courts are supposed to handle only the cases and issues that come before it.

When people talk about “legislating from the bench”, what they’re saying, in a way, is a play on the issue in dispute. When court’s go beyond-the-issues, they’ve opined on an issue beyond the limits of that particular case.


For further perspective, think about the word “unconstitutional” in today’s nomenclature.

In 2020, the reference likely means the actual Constitution of the United States. That document was ratified over 200 years ago. That document has been amended to include a Bill of Rights (considered the first 10 amendments), prohibit slavery (i.e. involuntary servitude, Amendment XIII) and confirm the right to vote (Amendment XV).

But that document is not perfect — as the founding fathers readily acknowledged — particularly on social justice issues.

For instance, in 1919, guess what the States constitutionally prohibited? Liquor. (Amendment XVIII). The Constitution prohibited the manufacture, sale or transportation of liquor. The prohibition era was social-policy. The (crudely summarized) reasoning was that people were neither at their best nor could be trusted with the scourge of liquor.

Prohibition was repealed in 1933 (Amendment XXI). The people had a distaste for prohibition. Pun intended.

We see similar social policy reforms today, responding to COVID. Such reforms have a similar distaste. Often ineffective, with unintended, negative consequences. This is regardless how laudable or well-intentioned a lockdown or gathering restrictions may suggest.

But are social-policy reforms “unconstitutional”?


As described in 1774: The Long Year of Revolution by Mary Beth Norton, the term “unconstitutional” began appearing in American newspapers more frequently in the 1760’s. The word unconstitutional was becoming commonplace decades before the actual Constitution.

The term was more general. It related to policy. British policy. Toward the colonies.

In fact, the word then was used to illigitimize British reprisals, often coupled with terms such as “unjust,” “cruel,” “oppressive,” “unwarantable” or “arbitrary.” (1774 at p. 126). Essentially, if someone thought an act unconstitutional, the person could justify non-compliance by declaring it unconstitutional.

Of course, non-compliance was not particularly helpful. Not so much because of the anti-British flair but because it lost the message. As even those attending the First Continental Congress (in 1774) recognized, what was needed was a united front against unjust, cruel, oppressive, unwarantable and arbitrary British policies. Failure to stay united would sacrifice the ability to achieve a desired result.

Today, in 2020, the term unconstitutional has the contextual understanding of the actual Constitution.

Yet for as much as the word is used — “That’s unconstitutional!” — it has become a political tool as opposed to an actual, document-specific reference.

In other words, the term is often used, today, similar to 200 years ago, describing policy decisions that may not run contrary to the written word.

The recent Supreme Court nomination is a perfect example.


Here is context. A candidate is nominated by the President and confirmed by the Senate, meaning both branches are involved. This is constitutional. It is in the Constitution. (Art.II, Sec. 2, Clause 2.)

But the Constitution doesn’t proscribe the actual nomination or hearing process. Instead, confirmation procedure and court-composition is with Congress. The current composition under federal law is 9 justices.

As a 9-member court, one-vote does not, by itself, decide a case.

The Court’s themselves have checks, in procedure and role. Only certain cases are decided by the Court (see above) and, from at least an historical perspective, there are examples aplenty of a justice not voting along the party-line from which his/her nomination sourced.

Moreover, even the court-system has a check within its own system. Checks include adhering to precedent and the court’s “standard of review” — something I blogged extensively for Wisconsin’s appellate practice blog, found here:

So ask yourself, what’s the problem with this confirmation. There was nothing unconstitutional about it, per the actual Constitution. There is precedent for filling a vacant seat in advance of an election. And the federal law allows it to happen. Perhaps the best argument against confirmation is more the distaste of timing. But distaste doesn’t make something unconstitutional, at least in today’s understanding.


Which finally leads to the topic de jure: court-packing.

What is court-packing? There is no rhyme or reason to a 9-judge Supreme Court panel. Wisconsin has 7 on its court. There are times when a full panel of federal appellate judges, many more than 9, may hear a case. At the Supreme Court, having 9 seems to work and has been the size of the court for over 150 years.

But in the 1930’s, President Franklin Roosevelt (FDR), coming off a landslide election, disliked that the Supreme Court struck down a number of his New Deal initiatives. His idea: if he could open seats by requiring age-based retirement and add new seats to the sitting-9, he could nominate justices that would uphold his initiatives.

FDR wanted to pack the court with those favorable to him.

Ultimately, historians dispute why FDR’s idea didn’t last. One reason was that a justice changed his vote that upheld some New Deal programs. This change became known as “the switch in time that saved nine”.

Yet the larger issue was more nuanced. FDR lost political clout from even suggesting he pack the court. And the packing-plan was rendered moot when, over time (FDR was elected four times) FDR was able to nominate justices through sheer attrition.


Fast forward to 2020, the Democrat’s “court-packing” theory, in response to Monday’s confirmation hearing, harkens back to FDR.

For all the talk — which seems to embolden each side of the debate — the conclusion is simple: it’s a bad idea. It’s a bad idea because it underscores gamesmanship. It’s a bad idea because getting any large group of people to agree is hard-enough, without adding more to the mix. Perhaps one could even phrase court-packing as “unconstitutional” as that term was used in the 1770’s. Court-packing as a plan suggests illegitimacy in the judiciary. This could be why in the 1930’s, the justices themselves, on all sides, opposed FDR’s plan. Court-packing moves closer to at least one standard — arbitrary — that the people were concerned with two centuries ago.

Which brings us back to this election. The President of the United States. Yet another piece of history to consider in how we got here and the subject of my next post, “Kingly Approach?”


Jacques C. Condon, Marquette 1999, is owner of Condon Law Firm, LLC, in Thiensville, handling civil litigation, business law, and problem-solving cases ranging on everything from sports and entertainment to local-level government action.

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Jacques C. Condon