Nicolas, Peter, “Nine, of Course: A Dialogue on Congressional Power to Set by Statute the Number of Justices on the Supreme Court“. New York University Journal of Law & Liberty, Forthcoming

In this article, I hypothesize that 28 U.S.C. Section 1, which sets the number of justices on the United States Supreme Court at nine, is not a constitutionally valid exercise of congressional power. Rather, I theorize, under the design of the Constitution, the number of justices on the Supreme Court at any given time will vary depending on the number of justices the President chooses to nominate and how many of those, if any, members of the Senate opt to confirm.

In the manuscript, I consider and reject potential sources of congressional power to enact the statute, including the Necessary and Proper Clause of Article I and the Regulations Clause of Article III. I then consider how the constitutionality of the statute would be determined, including who would have standing to bring a challenge. Finally, I examine the consequences of my hypothesis.

…worries Brian Tamanaha, too:

How many battles of this sort can the legal system absorb before everyone simply takes for granted that the judge’s ideology is everything—that the law doesn’t matter? Or have we already passed that point?

Lessig seems to have passed that point after the Eldred decision:

I have spent more than a decade of my life teaching constitutional law—and teaching it in a particularly unfashionable way. As any of my students will attest, my aim is always to say that we should try to understand what the court does in a consistently principled way. We should learn to read what the court does, not as the actions of politicians, but as people who are applying the law as principle, in as principled a manner as they can.

[…]

These five justices have all the right in the world to have their own principled way of interpreting the constitution. Long before this case, I had written many many pages trying to explain the principle I thought inherent in the decisions of these five justices. I have spent many hours insisting on the same to ever-skeptical students. But by what right do these 5 get to pick and choose the parts of the constitution to which their principles will apply?

Unfortunately, I don’t have any ideas on how to put the judicial-ideological genie back in the bottle.