Jonah Patel
The U.S. Constitution does not define the Supreme Court's size, and Congress can change it by passing an act that the President then signs. The Judiciary Act of 1789 established the first Supreme Court, with six justices. Since 1869, the Supreme Court has had nine justices. In 1937, President Roosevelt proposed adding more justices to the Supreme Court to obtain favourable rulings regarding New Deal legislation that the Court had ruled unconstitutional. This initiative, known as the Judicial Procedures Reform Bill of 1937, was called court-packing and proved to be unpopular. Since then, there have been several attempts to introduce a constitutional amendment to prevent court-packing by capping the number of justices at nine.
| Characteristics | Values |
|---|---|
| Number of justices | Nine |
| Court-packing | Adding justices to the Supreme Court to obtain favourable rulings |
| Court-packing plan | Legislative initiative proposed by President Roosevelt to add justices to the Supreme Court |
| Court-packing battle | Battle between Roosevelt and the Supreme Court over New Deal economic reforms |
| Judicial Procedures Reform Bill of 1937 | Legislative initiative to add justices to the Supreme Court |
| Constitutional amendment | Proposed amendment to prevent court-packing by capping the number of justices at nine |
| Congress | The power to change the number of justices rests with Congress |
| Presidency | The President can appoint justices to the Supreme Court |
| Political spectrum | The makeup of the Supreme Court should reflect the will of the people and be beholden to the Constitution |
| Rule of law | Court-packing would threaten the rule of law and judicial independence |
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What You'll Learn
The U.S. Constitution does not define the Supreme Court's size
The U.S. Constitution does not define the size of the Supreme Court. Article III, Section 1, starts with a broad direction to Congress to establish the court system: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." This means that Congress can change the number of Supreme Court Justices by passing an act that is then signed by the President.
The number of Justices 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 in an attempt to limit incoming President Thomas Jefferson's appointments. Jefferson and his Democratic-Republicans soon repealed that act, restoring the Court to six Justices. In 1869, Congress established that the Supreme Court would consist of the chief justice and eight associate justices, and the Court has had nine justices since.
In 1937, President Franklin D. Roosevelt proposed adding more justices to the Supreme Court to obtain favourable rulings regarding New Deal legislation that the Court had ruled unconstitutional. Roosevelt argued that the Bill was needed to overcome the Supreme Court's opposition to the New Deal, stating that the nation had to "take action to save the Constitution from the Court, and the Court from itself". Roosevelt's proposal was seen by many as a power grab for control of a second branch of government. Roosevelt's plan was opposed by members of both parties, including Vice President John Nance Garner, and it ultimately failed.
In recent years, there have been renewed efforts to add justices to the Supreme Court, with House and Senate Democrats pushing legislation to add four members to the Court. This has been opposed by many, including some Democrats, who argue that it would delegitimize the Court and increase partisanship within the institution. In response to these efforts, several constitutional amendments have been proposed to prevent court-packing by capping the number of justices at nine.
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Congress can change the number of justices
The Constitution does not define the Supreme Court's size, and Congress can change the number of justices by passing an act that is then signed by the President. Article III, Section 1, starts with a broad direction to Congress to establish the court system: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
The number of justices 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 in an attempt to limit incoming President Thomas Jefferson's appointments. Jefferson and his Democratic-Republicans soon repealed that act, putting the Court back to six justices. In 1869, Congress established that the Supreme Court would consist of the chief justice and eight associate justices.
In 1937, President Franklin D. Roosevelt proposed the Judicial Procedures Reform Bill, frequently called the "court-packing plan," to add more justices to the Supreme Court in order to obtain favorable rulings regarding New Deal legislation that the Court had ruled unconstitutional. Roosevelt's proposal was seen by many as an obvious power grab for control of a second branch of government. The legislation was opposed not only by Chief Justice Charles Evans Hughes but also by Justice Louis Brandeis and members of Roosevelt's Democratic Party. The bill ultimately failed to gain traction, and Roosevelt was unable to change the number of justices.
In recent years, there have been renewed debates about the potential for court-packing, with some Democrats considering using congressional powers to change the number of justices if they gained control of the White House and both chambers of Congress. In response, several senators, including Mike Gallagher, Ted Cruz, and Marco Rubio, have introduced constitutional amendments to prevent court-packing by capping the number of justices at nine. These amendments aim to protect the independence and integrity of the Supreme Court and prevent it from becoming a partisan institution.
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Court-packing is a slippery slope to partisan politics
The bill would have granted the president the power to appoint an additional justice to the Supreme Court, up to a maximum of six, for every member of the court over the age of 70. This proposal was seen by many as an obvious power grab for control of another branch of government. The press and public opinion were largely negative, with Roosevelt only able to garner around 39% support for his plan. Roosevelt lost the court-packing battle but won the war for control of the Supreme Court by serving in office for over twelve years and appointing eight of the nine justices.
Court-packing is a dangerous game that threatens the independence and integrity of the Supreme Court. It is a direct assault on the design of the Constitution, which aims to ensure the Court remains a non-partisan guardian of the rule of law. Packing the Court for political leverage destabilizes the institution and undermines American democracy and confidence in the judicial system. It would also increase partisanship within the institution, creating greater challenges in settling the pressing cases that matter to Americans in a constitutional and just way.
The Supreme Court should reflect the will of the people and be beholden only to the U.S. Constitution, not partisan politics. The appointment of justices has largely been balanced between Democrats and Republicans, with 28 appointed by Republican presidents and 24 by Democratic presidents since 1912. Court-packing would threaten the rule of law and judicial independence, with each president able to add justices for rank political reasons. It is a recipe for chaos and would create distrust in the judicial system.
To prevent the delegitimization of the Supreme Court, a constitutional amendment has been proposed to keep the number of seats at nine. This amendment would ensure the Court remains independent from political pressure and safeguard the Constitution.
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Court-packing proposals are unpopular and delegitimizing
Court-packing proposals have been unpopular in the past. In 1937, President Roosevelt's attempt to pack the court with justices who would support his New Deal agenda was met with opposition from members of his own Democratic Party, as well as Chief Justice Charles Evans Hughes and Justice Louis Brandeis. The public also opposed the proposal, with Gallup Polls from 1937 showing that support averaged about 39%. The plan ultimately failed to gain traction and Roosevelt was unable to pass any legislation to expand the court.
More recently, in 2021, President Biden announced a commission to explore court-packing reforms, which was met with criticism and concern from both sides of the political aisle. Former President Biden, when he was a Senator, had also opposed court-packing proposals, calling it a "terrible, terrible mistake". Justice Stephen Breyer and former Justice Ruth Bader Ginsburg have also expressed their disapproval of court-packing, with Ginsburg stating that it would make the court appear partisan.
Court-packing proposals have been characterised as an attempt to delegitimize the Supreme Court by undermining its independence and institutional power. Critics argue that such proposals are driven by a desire to seize control of the court and advance partisan political agendas. For example, Roosevelt's court-packing plan was seen as an attempt to break the Supreme Court's opposition to his New Deal agenda. Similarly, more recent proposals by progressive Democrats to pack the court have been motivated by a desire to protect and advance progressive policies.
While the Constitution does not define the Supreme Court's size, and Congress technically has the power to change it, court-packing proposals are generally viewed as a threat to the independence and integrity of the judiciary. As such, they are often unpopular and seen as delegitimizing, even by those who may stand to benefit from them politically.
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Court-packing is a threat to judicial independence
The concept of court-packing is not new, and there have been several instances of it throughout history. One notable example is the Judicial Procedures Reform Bill of 1937, also known as the "'court-packing plan'," proposed by US President Franklin D. Roosevelt. Roosevelt sought to add more justices to the US Supreme Court to obtain favorable rulings regarding New Deal legislation that the Court had ruled unconstitutional. Roosevelt believed this was within his power as the US Constitution does not define the Supreme Court's size.
While Roosevelt's plan was ultimately unsuccessful, it sparked a fierce debate about the role of the courts and the importance of judicial independence. Many members of both political parties viewed the legislation as an attempt to stack the court, and it was opposed by several prominent figures, including Vice President John Nance Garner and Justice Louis Brandeis.
More recently, in 2021, there were reports that some Democrats considered using congressional powers to change the number of Justices on the Supreme Court. This prompted Congressman Mike Gallagher to introduce a constitutional amendment to prevent court-packing by capping the size of the Supreme Court at nine justices. The amendment was first introduced in 2019 and then reintroduced in 2021.
The debate around court-packing highlights the importance of an independent judiciary. As Justice Stephen Breyer stated in a 2021 address, those considering court-packing should "think long and hard before they embody those changes in law."
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Frequently asked questions
No, the Constitution does not define the Supreme Court's size, and Congress can change it by passing an act that is then signed by the President.
Court-packing refers to the act of adding more justices to the Supreme Court, usually to obtain favorable rulings.
Yes, in 1937, President Roosevelt proposed adding more justices to the Supreme Court to obtain favorable rulings regarding New Deal legislation that the Court had ruled unconstitutional. This was called the Judicial Procedures Reform Bill of 1937. The bill was opposed by many and ultimately failed.
Yes, there have been attempts to introduce a constitutional amendment to prevent court-packing by capping the number of Supreme Court justices.
