It is Constitutional? Court-Packing

There’s been a lot of talk about the Supreme Court, the Constitution, what’s Constitutional (which is a bit of a joke to me since neither political party follows the Constitution at this point), can the Court be packed, can the President appoint someone to the Supreme Court in an election year, so on and so forth. 

Before you read this post, I encourage you to go read my articles explaining why one Supreme Court nomination shouldn’t be this big of a deal and why the Court now has the power that they do. In those articles I set the theoretical as well as historical foundations. Today’s article gets a bit more nitty gritty on the details. So, I’m going to step through the Constitutionality of  many of the aforementioned questions and clarify a few points about the court’s power relative to that of the other two branches. 

Again, before you continue reading, it’s critical that you understand the fact that the judicial branch truly is the weakest branch and that it was created to be the weakest branch. 

So, without further ado, let’s look at what the Constitution has to say about some of the most salient questions today. 

One: Who Is In Charge of the Courts?

Now, I haven’t necessarily heard this question asked today but it needs to be asked because it needs to be answered before I answer the more commonly asked questions. Courts don’t just pop up. They are created and usually the creator of something is more powerful than the created.

In this case, Congress is the creator who creates the courts. Take a moment to read Section 1 of Article III in the Constitution. It says: 

“The judicial Power of the United States, shall be vested in one supreme Court [notice that the word “supreme” is not capitalized, again underscoring the lack of power the supreme Court was originally given] and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

So, there, clearly stated, Congress has the power—when they deem it necessary—-to ordain and establish courts. This means that all federal courts, save the Supreme Court, are created by Congress. This quote from explains: 

“The Convention left up to Congress decision on the size and composition of the Supreme Court, the time and place for sitting, its internal organization, save for the reference to the Chief Justice in the impeachment provision, and other matters.” 


”Congress has also determined the time and place of sessions of the Court. It utilized this power once in 1801 to change its terms so that for fourteen months the Court did not convene, so as to forestall a constitutional attack on the repeal of the Judiciary Act of 1801.”

So, the point here is, Constitutionally, Congress has almost complete control over not only lower level federal courts, but also the Supreme Court. Congress not only controls the size, make up, time and place for sitting, organization, but also has power over which types of cases the Supreme Court and courts can hear. For your information and further research, most of the management of the courts by Congress has come by the Judiciary Act of 1789 and subsequent additions or changes to it. 

The Constitution says, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court [again, notice capitalization] shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

With the exception of the few, narrow, topics explicitly mentioned as Supreme Court jurisdiction, Congress has the authority to decide what cases the courts shall or shall not preside over. 

That’s pretty significant. 

Two: Can the President Appoint a Justice during an Election Year?

So, with point one as the backdrop, the answer to this next question is rather simple. 

Yes, Constitutionally, the president can appoint justices or any other federal appointment, up until his last day in office. And by that, I mean, January 20th, not November 4th. 

In fact, back in the founding era when judges and justices were not nearly as consequential, presidents would appoint them last minute and the Senate would approve them just as swiftly. Why? Because there was no drama surrounding the appointment of inconsequential positions. 

In case you need a reminder, in 1803, Thomas Jefferson defeated sitting presidential incumbent John Adams. John Adams wanted to give his party as much power as he could before leaving office. So, on his last day in office he appointed 42 new Justices of the Peace and 16 Circuit Judges, all of whom were Federalists. And the Senate approved the appointments. 

John AdamsJohn Adams

John Adams

So, yes. The Constitution is very short, very simple and very clear. There is no provision in it that could ever be construed to mean that the president should be prohibited from doing his job simply because he is on the last few days of his job. 

He is president until he is not. 

Three: Can the Legislature Pack the Court/Change the Number of Justices on the Court?

Yes. There is nothing in the Constitution that would say otherwise. As I explained above, Congress has the power to do whatever they wish with the makeup of the Supreme Court. 

Blowing your mind a bit? When I say that Congress is, at least, Constitutionally, the most powerful branch, I’m not joking. It’s immense power or potential for power was the motivating factor behind why the founders chose to split the branch in half. 

But they wanted Congress to be the most powerful. Why? Because it’s Congress who is elected by the people, not the courts. They wanted Congress, and by proxy, the people, to have the power to do what they will with the courts because of this. 

From the same source used above: “By the Act [The Judiciary Act of 1789], the Court was made to consist of a Chief Justice and five Associate Justices. 13 The number was gradually increased until it reached a total of ten under the act of March 3, 1863. 14 As one of the Reconstruction Congress’ restrictions on President Andrew Johnson, the number was reduced to seven as vacancies should occur. 15 The number actually never fell below eight before the end of Johnson’s term, and Congress thereupon made the number nine.”

So, there’s no Constitutional prerogative dictating that the Supreme Court’s number of Justices should be nine. There’s really nothing special about that number. Congress can change it, should it so desire. It may not be the healthiest thing to do if the goal is to have a stable judicial system, but nevertheless, Constitutionally, that is within Congress’s power to determine. 



Packing the Court falls within this same Constitutional right of Congress. 

Now, is packing the Court desirable? In other words, is the president using his political power to force certain laws through Congress by packing the Court with judges favorable to his cause desirable? 

It depends on who you’re talking to. Historically, it’s proven to be a rather unpopular move. Simply look at history and FDR’s attempt to pack the court, you’ll find that, neither Congress nor the American people looked too kindly on this type of power. In fact, FDR lost a great deal of popularity as a result of his push to pack the Court. 

There are some calls for an amendment to make packing the Court unconstitutional. Specifically, Senator Marco Rubio has presented the idea to Congress

The unfortunate reality is this: if the Court was simply doing its Constitutionally mandated job, packing/unpacking the Court would never likely be an issue or should it become an issue, it wouldn’t likely matter. 

Four: How is the Chief Justice Chosen and Can He Be Forcibly Replaced?

So, here’s the thing about the Chief Justice of the Supreme Court. There’s little to no Constitutional direction about his position, his power, or how he is appointed. In fact, there’s no mention of a Chief Justice in Article III of the Constitution. The only mention of such a figure is in Article I when directing the Senate about how to try a president who has been impeached by the House. 

The clause states: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”


So, based on this single Constitutional mention, we know there is a Chief Justice, but beyond that, there’s little else said about his power or how he’s put in his position. 

The common practice so far has been for the President to simply nominate someone, either someone on the bench or someone who is nominated for the first time, to the role of Chief Justice. The Senate then gives advice and consent (Remember, a “hearing” is nowhere required in the Constitution. That is merely something the Senate has chosen to do in their role of advice and consent.) and the Chief Justice is appointed—if confirmed. If the newly appointed Chief Justice had previously held an Associate Justice position, the President must then appoint a new person to fill the subsequent vacancy. 

Again, since there is no Constitutional direction on this. Some have argued that the Court Justices should be the ones to decide who the Chief Justice will be; but up until now, the Court has merely respected the tradition of presidential appointments of the Chief Justice. 

Others have argued that the President should be able to replace or demote a sitting Chief Justice. However, up until now, no president has attempted and should he attempt, would likely receive pushback from the Court about the Constitutionality of such a move. 

According to the Constitution, judges and Justices may keep their positions as long as they are of “good behavior” and the only way to remove a judge or Justice is through impeachment by… you guessed it… Congress. 

Five: What Are the Required Qualifications for a Supreme Court Justice?

Finally, I added this last little question because I find the answer fascinating. It’s a beautiful picture of the founder’s rejection of the classism of the British rule. 

If you notice, the only real requirements for most federal positions in government are either residency, age or in the Supreme Court’s case, “good behavior”. 


There is no educational requirement, no job experience requirement, no income requirement, literally there are almost no requirements for some of the most important and powerful positions we now have. (Granted, at the time, the most important positions were state level positions…which I still maintain are the most important. )

The founders wanted American citizens to have access to government positions, to be able to govern themselves. It was part of their civic duty. It was never a career aspiration. The most important requirement the founders focused on for a new government politician was this: he or she must appreciate the values, liberty and Constitution of their country. This is why the Constitution requires that certain government officials must have lived in and acclimated themselves to America. 

So, for the Supreme Court, a sitting Justice, must merely behave “good”. He or she does not have to have a law degree, a college degree, or any degree, for that matter. There is no age requirement for a Justice either.

In fact, James F. Byrnes (1941-1942), a Supreme Court Justice, only had a high school degree, while Robert H. Jackson (1941-1954) did not attend an undergraduate college but did study law. 

This is not to say that a sitting member of SCOTUS shouldn’t be expected to have, to even required to have, a certain education and knowledge of the law—a law degree; but that the pretentious and almost royal-like requirements are mere social constructions.

Today, we’ve turned the expectations for the Supreme Court into those of royalist or classism, as if an individual can only be a member of SCOTUS if they have achieved certain, for many Americans, impossible requirements.

No, the Supreme Court’s role and power was created to be simple and limited, meaning that Americans who simply had a good understanding and respect for the Constitution could serve as a member of SCOTUS. 

How far from that realty have we fallen?




The Court’s power and influence is far beyond what the founders ever envisioned and ever would want. We suffer today from the consequences of past overzealous generations of American citizens who demanded the Supreme Court to make decisions on issues they had no right to make decisions about. 

I know that the answers I present here are not necessarily the answers many Americans are claiming or hoping for today; but our emotions, our feelings and our opinions on the matter really don’t matter. 

What does matter?

The Constitution. 

The Liberty Belle 

ARTICLE III of the United States Constitution 


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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which sh”


The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.


Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.


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