Court-packing isn’t just a bad idea — it’s downright unconstitutional

But just because Congress can initially set the number of justices on the high court, does that mean Congress can later manipulate the size of the court to shift the balance of judicial power? Since Chief Justice John Marshall’s landmark opinion in McCulloch v. Maryland in 1819, the Supreme Court has interpreted the Necessary and Proper Clause in a sweeping manner, resulting in a significant expansion of congressional authority. This has been largely accomplished through a broad reading of the word “necessary,” which the opinion in McCulloch defines not as “strictly necessary,” but as “convenient or useful.” In this way, Congress has exercised exceptionally broad authority to make laws impacting nearly every aspect of our lives. But in addition to being “necessary” (as broad as that is), a law enacted under this provision must also be “proper.” And there’s the rub. In McCulloch, the court explained that “proper” means “consist[ent] with the letter and spirit of the Constitution.”­ Moreover, the “end [must] be legitimate.”