If so, the sound of liberals' heads exploding will be heard throughout the land

And may hers be the first to go

M. Todd Henderson. Professor, University of Chicago Law School: Court-Packing is Unconstitutional

Excerpts:

History strongly supports maintaining the Court's current size. The number of justices has changed on occasion. Originally, the Court had six justices. It grew to seven and eventually 10, before settling back to nine by the end of the Civil War era. As Princeton University's Keith Whittington has described in these pages, the change in the number of justices was largely a matter of accommodating the needs of a growing nation—not the political whims of Congress.

The justices were originally chosen from various regions of the country and had an obligation to travel around their region hearing cases in lower courts, a practice known as "riding circuit." As the nation expanded, so did the Court. The judicial branch lobbied for years for an expansion, given the increased workload and burden of riding circuit in the expanding American West. When justices had to travel by carriage throughout the land, this expansion made sense. Expanding the Court was meant to improve the function of the judiciary—not undermine it.

The United States is 10 times bigger now than it was when the Court was fixed at nine members, but justices no longer ride circuit. And the number of cases it hears are easily manageable by its current composition. In any event, Democrats today are not talking about expanding the Court because of population growth, but packing it because they are upset with its political composition and the way in which the Senate treated Judge Merrick Garland in 2016. Even if you believe Garland was mistreated and Barrett's confirmation was a hypocritical act, the intent to undo these acts of politics by packing the Court is completely out of bounds.

Intent matters, as the courts have recently held in several recent cases in which they declared federal policies unconstitutional based on the alleged bad intent divined from President Trump's tweets or other statements. The Democrats' intent is to pack the Court for political reasons, plain and simple. This would be unprecedented in our history. And, the intent to destroy the third branch—the one that ensures the other two comply with the Constitution—is sufficient to find it illegal.

The size of the Court has, of course, previously been a political football at times. Upset about President Andrew Johnson's attempt to undo Reconstruction in the period after the Civil War, Republicans in Congress brought the number of justices down to seven so that Johnson wouldn't have a chance to make additional appointments. As soon as Johnson left office, congressional Republicans increased the number of justices back to nine. It has been nine ever since.

This episode is a terrible precedent for Democrats' plans to pack the Court. Following this approach would lead to a tit-for-tat cycle that might be difficult to break. Democrats increase the size of the Court; then, when Republicans are in charge, as they will be at some point, they retaliate. The Court's rulings—whether to protect gay marriage or property rights—would then mean nothing beyond the term of the president and Congress in power at any given time. This is a full-frontal assault on the rule of law, which the Constitution is designed to establish and secure.

The last time Democrats tried to pack the Court for political reasons, it was widely rejected as at odds with the Constitution. In 1936, President Franklin D. Roosevelt proposed adding justices after the Court had invalidated some of his New Deal legislation. The Senate Judiciary Committee declared that it was a "needless, futile and utterly dangerous abandonment of constitutional principle." After reviewing the text, structure and history of the Constitution, it declared any proposed increase in the size of the Court for political reasons to be flatly unconstitutional. It concluded that "[The packing plan's] ultimate operation would be to make this Government one of men rather than one of law, and its practical operation would be to make the Constitution what the executive or legislative branches of the Government choose to say it is—an interpretation to be changed with each change of administration."