Omar Bennett
The expansion of the Supreme Court has been a topic of discussion in recent years, with some advocating for increasing the number of justices to promote ideological balance. While the Constitution does not specify the size of the Court, any expansion would require an act of Congress, involving a majority in both houses and the President's signature. Some scholars argue that a constitutional amendment is necessary for such changes, while others propose workarounds like term limits or rotating justices to lower courts. The last time the size of the Supreme Court was altered was in 1869, and the current ideological divide in Congress makes it challenging to achieve the required two-thirds majority in both chambers for an amendment.
| Characteristics | Values |
|---|---|
| Constitutional requirements for Justices | Beyond Senate approval, there are no requirements |
| Constitutional mention of the size of the Supreme Court | The Constitution does not specify the size of the Court |
| Historical changes to the size of the Court | The size has been changed multiple times, last in 1869 when it was expanded to nine Justices |
| Current procedure to expand the Court | Requires a law to be passed with a majority in the House, a 60% supermajority in the Senate, the President's signature, and if vetoed, a two-thirds majority in both chambers to override |
| Constitutional amendment procedure | Requires a two-thirds majority in both chambers or a constitutional convention called by the states |
| Constitutional amendment for term limits | Many scholars believe an amendment is required, but some propose an act of Congress |
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What You'll Learn
The number of justices has changed over time
The number of Supreme Court justices has changed several times throughout history, with Congress having the power to change it by passing an act that is then signed by the President. The Judiciary Act of 1789 established the first Supreme Court, comprising six justices. In 1801, the 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 However, Jefferson and his Democratic-Republicans soon repealed that act, restoring the Court to six justices.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 with the addition of a seventh federal court circuit. In 1837, President Andrew Jackson added two more justices after Congress expanded the number of federal circuit court districts. During the Civil War in 1863, Congress created the 10th Circuit, temporarily expanding the Court to ten justices. The last time Congress changed the size of the Supreme Court was in 1869, when they expanded it to include nine justices, which remains the current number.
While there is no constitutional requirement for a set number of justices, any changes to the court's size or structure would typically require an act of Congress and the President's signature. However, some have proposed a constitutional amendment to permanently fix the number of justices, arguing that it would prevent the destabilization of essential institutions.
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Congress can change the number of justices
The Constitution does not specify the size of the Supreme Court. Therefore, Congress can change the number of justices through an act of legislation. This legislation requires a simple majority in both houses of Congress and the signature of the President.
The number of justices on the Supreme Court has changed multiple times throughout history. The Judiciary Act of 1789 established the first Supreme Court, which included six justices. In 1801, the number of justices was reduced to five but was soon reverted to six in 1802. The number of justices was incrementally increased over the following decades, reaching ten in 1863. The last time Congress changed the size of the Supreme Court was in 1869, when it was expanded to include nine justices, which remains the current number.
Some have proposed expanding the Supreme Court to include more justices. In 1937, President Franklin Delano Roosevelt's administration proposed legislation to expand the Court, but Congress declined to act on the proposal. More recently, there have been discussions about President Biden making changes to the Supreme Court, but no proposals have been formally introduced or enacted.
While Congress has the power to change the number of justices on the Supreme Court, it is important to consider the potential implications and consequences of such actions. Court-packing for purely political reasons may provoke a public backlash and undermine the Court's power and independence.
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The Constitution doesn't specify the size of the Court
The Constitution does not specify the size of the Supreme Court. The number of Justices has changed over time. The Judiciary Act of 1789 established the first Supreme Court, with six Justices. In 1801, the number of Justices was reduced to five but was soon repealed, bringing the Court back to six Justices. In 1807, a seventh Justice was added when Congress added a seventh federal court circuit. In 1837, two additional Justices were added after Congress expanded the number of federal circuit court districts. During the Civil War in 1863, Congress created the 10th Circuit, and the Court briefly had 10 Justices. The last time Congress changed the size of the Supreme Court was in 1869, when it was expanded to include nine Justices.
The Constitution is silent on matters such as the size and composition of the Supreme Court, leaving those questions to Congress. Congress can change the size of the Court by passing an act that is then signed by the President. This process requires a majority of those voting in the House of Representatives, a 60% supermajority in the Senate to end debate, and a majority in the Senate. If the President vetoes the act, a two-thirds majority is required in both the House and the Senate to override the veto.
Some scholars argue that a constitutional amendment is needed to place term limits on Supreme Court Justices. However, others propose that term limits can be implemented through an act of Congress without amending the Constitution. While the Constitution does not expressly prohibit legislative changes to the size of the Supreme Court, some commentators have debated whether proposals to expand the Court are inconsistent with constitutional norms.
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The President's role in expanding the Court
The President does not have a unilateral role in expanding the Supreme Court. The Constitution does not specify a set number of Justices, leaving that question to Congress. The number of Justices has changed over time. For example, 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, reducing the Court to five Justices. However, this act was soon repealed by President Thomas Jefferson and the number of Justices was returned to six. Subsequently, in 1807, Jefferson and Congress added a seventh Justice.
While the President can propose legislation and influence Congress, any change to the size of the Supreme Court must be passed by Congress and signed by the President. In 1937, President Franklin Delano Roosevelt's administration proposed court expansion legislation, but Congress declined to act on it due to concerns about judicial independence.
It's worth noting that some scholars and politicians, like Senator Marco Rubio, have proposed a constitutional amendment to permanently fix the number of Supreme Court Justices at nine, requiring a high threshold of approval from Congress and ratification by a significant number of states. This highlights the complex nature of making changes to the Supreme Court's composition and the need for a careful balance of powers between the different branches of government.
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The process of passing a law to expand the Court
The process of passing a law to expand the number of Justices on the Supreme Court is a complex one. While the Constitution does not fix the number of Justices, it grants Congress the power to change it by passing an act. This act would then need to be signed by the President to become law.
The process of passing a law begins with a bill, which can be proposed by a sitting member of the U.S. Senate or House of Representatives, or be proposed during their election campaign. Bills can also be petitioned by citizens or groups who recommend a new or amended law to a member of Congress. Once introduced, a bill is assigned to a committee that researches, discusses, and makes changes to it. The bill is then put to a vote in that chamber.
If the bill passes in one body of Congress, it goes through a similar process in the other body. The House and Senate have different ways of processing legislation. The House tends to act more quickly, with a majority vote, while the Senate favours deliberation and debate before voting. After passing a vote in both chambers, the bill is presented to the President.
The President can then choose to approve and sign the bill into law, or veto it. If the President vetoes the bill, Congress can vote to override the veto, and the bill becomes law. However, if the President does not sign off on the bill, and Congress is no longer in session, the bill is pocket vetoed and cannot be overridden.
In the case of expanding the Supreme Court, the process would likely face significant challenges. Senator Marco Rubio has proposed a constitutional amendment to permanently limit the number of Justices to nine, which would require a two-thirds majority in both the House and Senate, and then ratification by three-quarters of states. Given the ideological split in Congress, such an effort would be difficult.
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Frequently asked questions
No, it does not. The size of the Court is not specified in the Constitution, so it can be changed by an act of Congress with a simple majority in both houses and the signature of the President.
Yes, the size of the Court has changed multiple times. The Judiciary Act of 1789 established the first Supreme Court, with six Justices. In 1869, under a new presidential administration, Congress expanded the Court to include nine Justices, which is the current number.
Yes, in 1937, President Franklin Delano Roosevelt’s Administration proposed legislation to expand the Court to make it more favourable towards his New Deal policies. However, Congress declined to act on the proposal, and the Supreme Court began to vote to uphold New Deal legislation.
