“The Founders erred in allowing Congress to fix the number of Supreme Court justices. So yes, Congress legally can pack the Court. As the author noted, it would upset our system of checks and balances.
But it would not be unconstitutional.”
It could actually violate the Necessary and Proper Clause, Article I, Section 8.
> It [court-packing] could actually violate the Necessary and Proper Clause, Article I, Section 8. <
Interestingly enough, the Necessary and Proper Clause is often given as the reason why court-packing is legal.
I think the bottom line is this. The size of the Supreme Court has been changed a couple of times over the years by acts of Congress. The Supreme Court has never objected to that. They have always deferred to Congress.
So given how weak most members of the Court are today, I’m guessing they won’t fuss too much.