Malcolm Rivera
Court-packing, or the act of changing the number of Justices in the Supreme Court, has been a contentious issue in American politics for decades. While some argue that court-packing is a legitimate way to reform the Supreme Court and align it with the current government's policies, others see it as a radical idea that undermines the independence and integrity of the judiciary. The debate centres around the fact that while the U.S. Constitution requires a Supreme Court, it does not specify its size, leaving room for interpretation and potential manipulation by the ruling party.
| Characteristics | Values |
|---|---|
| Constitutional Amendment required to prevent court packing | Yes, as per Senator Marco Rubio, Senator Shelley Moore Capito and others |
| Constitutional Amendment required to pack the court | No, as Article III of the Constitution doesn't specify the size of the Supreme Court |
| Historical precedent for court packing | Yes, the number of Justices has changed over time, including under President Andrew Jackson and President Franklin Roosevelt |
| Effectiveness of court packing | Unlikely to be effective for long-term constitutional change, according to Jill M. Fraley |
| Public opinion on court packing | Negative, with opposition ranging from 41% to 49% in Gallup Polls conducted in 1937 |
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What You'll Learn
Court packing is not unconstitutional
Court-packing is not unconstitutional. While Article III of the US Constitution requires a Supreme Court, it does not specify its size. Therefore, the Constitution allows Congress to authorise any number of Justices and to change the number of Justices whenever it wants. This means that Congress can theoretically add as many Justices as it likes, as long as it has the votes.
The number of Justices has changed several times in the past. The Judiciary Act of 1789 established the first Supreme Court, which consisted of six Justices. In 1801, President John Adams and a lame-duck Federalist Congress passed the Judiciary Act of 1801, which reduced the Court to five Justices to limit incoming President Thomas Jefferson's appointments. However, Jefferson and his Democratic-Republicans soon repealed that act, restoring the Court to six Justices. In 1807, Jefferson and Congress added a seventh Justice when Congress added a seventh federal court circuit. In 1866, Congress passed legislation to reduce the Court to seven Justices, but this only lasted until 1869, when a new Judiciary Act put the number back to nine Justices. During the Civil War, Congress created the 10th Circuit, and the Court briefly had ten Justices.
In 1937, President Franklin Roosevelt threatened to add new Justices who sympathised with his policies to the Supreme Court. This became known as Roosevelt's "court-packing plan". Roosevelt was particularly upset by the Court's 1935 decision in Schechter Poultry Corp. v. United States, which invalidated a key part of the National Industrial Recovery Act, one of the projects passed during his 100-day program in 1933. Roosevelt sought to change the makeup of the court by appointing new Justices who he hoped would rule that his legislative initiatives were constitutional. Members of both parties viewed the legislation as an attempt to stack the court, and many Democrats, including Vice President John Nance Garner, opposed it. The bill was ultimately defeated in the Senate.
Despite court-packing not being unconstitutional, some have argued that it is unlikely to be effective for any long-term informal constitutional change. Additionally, some members of Congress have introduced constitutional amendments to prevent court-packing by capping the number of Supreme Court Justices at nine.
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Congress has the power to change the number of Justices
The number of Justices on the Supreme Court has changed over time. The Judiciary Act of 1789 established the first Supreme Court, with six Justices. In 1801, President John Adams and a lame-duck Federalist Congress passed the Judiciary Act of 1801, which reduced the Court to five Justices. Since the US Constitution does not define the Supreme Court's size, Congress has the power to change it. Article III of the Constitution requires a Supreme Court but does not specify its size, giving Congress the authority to authorize any number of Justices and to modify the number at any time.
Congress has exercised this power on several occasions throughout history. For example, in 1801, President Thomas Jefferson and the Democratic-Republicans repealed the Judiciary Act of 1801, restoring the Court to six Justices. Subsequently, in 1807, Jefferson and Congress added a seventh Justice with the creation of a seventh federal court circuit. In 1837, President Andrew Jackson added two additional Justices after Congress expanded the number of federal circuit court districts. During the Civil War in 1863, Congress established the 10th Circuit, temporarily increasing the Court to ten Justices. However, this was short-lived, and in 1866, Congress passed legislation to reduce the Court back to seven Justices.
The most well-known attempt at court-packing occurred during Franklin D. Roosevelt's presidency in 1937. Roosevelt sought to counter the Supreme Court's opposition to his New Deal policies by proposing a court-packing plan that would allow him to appoint additional Justices sympathetic to his agenda. This plan was met with widespread opposition and ultimately failed.
While Congress has the power to change the number of Justices, it is important to note that the current composition of nine Justices has been in place since 1869. Some politicians and scholars have proposed constitutional amendments to prevent court-packing by capping the number of Justices at nine, arguing that it is essential to maintain the independence and integrity of the judiciary.
In conclusion, Congress has the authority to change the number of Justices on the Supreme Court, as the Constitution does not specify the Court's size. However, the power to pack the court has been rarely used, and there are ongoing debates about implementing measures to prevent court-packing to preserve the balance of power and public trust in the judiciary.
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Court packing is ineffective for long-term change
Court-packing is a strategy that has been employed by both Republicans and Democrats in the past. The number of Justices has changed over time; the Judiciary Act of 1789 established the first Supreme Court, with six Justices. Since then, the number has fluctuated between five and ten.
However, court-packing is unlikely to bring about effective, long-term, informal constitutional change. It is a strategy that can be employed by either party, and if used repeatedly, it could lead to a bloated, partisan, and ineffective Supreme Court. The court's standing would diminish, and it would become challenging to take it seriously.
Instead of court-packing, a more stable approach is to pursue structural changes through formal constitutional amendments. This process may be more challenging, but it can lead to enduring and publicly accepted statutes that are less susceptible to political manipulation.
Senator Marco Rubio, for example, has proposed a new constitutional amendment to limit the Supreme Court to nine Justices permanently. While this effort faces challenges, it demonstrates a recognition of the need for formal amendments to bring about lasting change.
In conclusion, court-packing may provide short-term gains for a particular political party, but it is ineffective for long-term change. It risks undermining the credibility and effectiveness of the Supreme Court. A better approach is to focus on formal constitutional amendments that can bring about stable and widely accepted structural changes.
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Court reform advocates propose term limits for Justices
Court-packing, or the attempt to add more justices to the Supreme Court to tilt its ideological makeup, does not require a constitutional amendment. The number of justices that sit on the Supreme Court is not defined by the US Constitution and has changed over time. For example, the Judiciary Act of 1801 reduced the number of justices from six to five, while the Judiciary Act of 1869 established that the Supreme Court would consist of nine justices.
However, court reform advocates have proposed term limits for justices as an alternative to court packing. This proposal suggests imposing 18-year term limits on Supreme Court justices, after which they would serve on lower courts and/or fill in on the high court when needed. The intention is to reduce the influence of political pressures on the judiciary and decrease the likelihood of extreme ideological imbalances on the Court. Thomas Jefferson, for instance, believed that life tenure was incompatible with a republican form of government.
While some scholars argue that a constitutional amendment is necessary to implement term limits, others suggest that it can be achieved through an act of Congress. The proposal raises questions about the Founders' intent when the Constitution was drafted and how such a reform would be enacted. Some argue that term limits would diminish the role of the Senate in confirming nominees and that it may not accomplish what advocates expect.
It is worth noting that the Constitution does not expressly grant "life tenure" to Supreme Court justices. The idea of life tenure has been interpreted from the language that judges and justices "shall hold their offices during good behaviour." Reform advocates propose that justices be appointed biennially, ensuring that winning a presidential election results in a predictable impact on Supreme Court jurisprudence.
Overall, the proposal for term limits on Supreme Court justices aims to address concerns about the increasing political polarization of the Court and the length of service of justices, which currently averages 28 years.
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Senators propose a constitutional amendment to limit the number of Justices
The number of Justices on the Supreme Court has changed over time. The Judiciary Act of 1789 established the first Supreme Court, with six Justices. In 1866, Congress passed legislation to reduce the Court to seven Justices, but this was short-lived as, in 1869, a new Judiciary Act restored the number to nine Justices. Since then, the number has remained stable, aside from Franklin Roosevelt's threat in 1937 to add new Justices sympathetic to his policies. This attempt at "court-packing" was opposed by members of both parties and was ultimately unsuccessful.
More recently, there have been reports that some Democrats considered using congressional powers to change the number of Justices if they regained control of the government. In response, Senator Marco Rubio has proposed a constitutional amendment to permanently limit the Supreme Court to nine Justices. Senators Todd Young and Ted Cruz have also introduced a similar amendment, arguing that it is necessary to protect the integrity and credibility of the Court.
The process of amending the Constitution is challenging, requiring approval from two-thirds of the House and Senate, followed by ratification by three-quarters of the states. Given the ideological split in Congress, Rubio's amendment faces long odds. However, it raises important questions about the stability of essential institutions and preventing their delegitimization.
While some scholars advocate for a constitutional amendment to limit the number of Justices, others propose placing term limits on Supreme Court Justices. Senators Manchin and Welch have introduced a constitutional amendment to impose 18-year term limits, arguing that it will inject new energy into the Court and prevent lengthy tenures. This amendment also includes a complex formula for a transition period to stagger the terms of subsequent Justices.
The debate around court-packing and term limits for Justices highlights the deeply polarizing nature of any proposed changes to the Supreme Court. While some view these changes as necessary reforms, others argue that they undermine the Court's integrity and non-partisan role.
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Frequently asked questions
No, court-packing does not require a constitutional amendment. Article III of the US Constitution requires a Supreme Court but does not specify its size, allowing Congress to change the number of Justices.
No, the number of Justices has changed over time. The Judiciary Act of 1789 established the first Supreme Court with six Justices. The number has fluctuated between five and ten before being set at nine in 1869.
Yes, in 2021, Senator Shelley Moore Capito introduced a constitutional amendment to maintain a total of nine Supreme Court Justices. This was in response to President Biden's announcement to create a commission to explore court-packing reforms.
Yes, there has been opposition to court-packing. Some argue that it is unlikely to be effective for long-term constitutional change and that a better solution is to formally amend the Constitution.
Yes, progressive advocates argue that court-packing is not only constitutional but also consistent with historical practice. They believe that Congress has the power to change the number of Justices at any time.
