Amending The Supreme Court: Expanding Or Changing?

The Supreme Court of the United States plays a crucial role in the country's constitutional system of government. While the Constitution establishes the Supreme Court, it does not specify the Court's size and composition, leaving those matters to be decided by Congress. Over time, Congress has altered the number of seats on the Supreme Court through various Acts, with the number fluctuating between five and ten justices. In 1869, Congress expanded the Court to include nine justices, which has remained the standard since. However, there have been attempts to expand the Court further, such as President Franklin D. Roosevelt's proposal in 1937, which was seen as an effort to influence the Court's ideological leanings. Today, proposals to expand the Court or implement term limits for justices have sparked debates about the need for a constitutional amendment. While some argue that a constitutional amendment is required to make such changes, others explore alternative avenues, such as acts of Congress. The discussion around expanding the Supreme Court and the potential need for a constitutional amendment highlights the complexities and ongoing evolution of America's constitutional system.

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The President's ability to expand the court

The President does not have the unilateral ability to expand the Supreme Court. While the Constitution establishes the Supreme Court, it permits Congress to decide how to organize it. Article III, Section I of the Constitution states that "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."

Congress first created a Supreme Court with six justices through the Judiciary Act of 1789. Over the years, various Acts of Congress have altered the number of seats on the Supreme Court, from a low of five to a high of 10. The last time Congress changed the size of the Court was in 1869, when it was fixed at nine justices.

While the Constitution does not expressly prohibit legislative changes to the size of the Supreme Court, any expansion would require an act of Congress, which the President would then need to sign into law. Therefore, the President can influence the expansion of the Court, but they cannot do so independently.

It is worth noting that there have been instances where Presidents have attempted to expand the Court. In 1937, President Franklin Delano Roosevelt proposed court expansion legislation, but it was regarded as an effort to make the Court more favorable to his policies and was not enacted. More recently, there have been discussions about President Biden making changes to the Supreme Court, but he has not explicitly supported court expansion.

Congress can change the number of seats

The Constitution establishes the Supreme Court, but it does not fix the number of seats. Instead, it permits Congress to decide how to organize the Supreme Court. The Constitution is silent on the size and composition of the Supreme Court, leaving those questions to Congress.

Congress has changed the size of the Supreme Court multiple times in the past. The Judiciary Act of 1789, for example, created a Supreme Court with six justices. Over the years, various Acts of Congress have altered the number of seats on the Supreme Court, from a low of five to a high of 10.

In 1869, Congress expanded the Court to include nine Justices. This was the last time Congress changed the size of the Supreme Court. There have been several unsuccessful attempts to expand the Court since then, including in 1937 when President Franklin Delano Roosevelt's Administration proposed court expansion legislation.

Senator Marco Rubio has proposed a new constitutional amendment to permanently limit the Supreme Court to nine Justices. Rubio acknowledges that there is "nothing magical about the number nine," but argues that preventing further destabilization of essential institutions is important. However, the constitutional amendment route requires a very high bar of approval from two-thirds of the House and Senate, and then ratification from three-quarters of the states.

Therefore, while the number of seats on the Supreme Court can be changed by Congress, it is not a simple process and requires significant approval from both the legislative and executive branches of government.

Court expansion is constitutional

> 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.

Congress has changed the size of the Court multiple times in the past, from a low of five to a high of 10. The Judiciary Act of 1789, for instance, created a Supreme Court with six justices. In 1869, Congress expanded the Court to include nine justices. This was the last time Congress changed the size of the Supreme Court.

While some commentators have debated whether certain proposals to expand the Court are inconsistent with constitutional norms, there is no provision in the Constitution that expressly prohibits legislative changes to the size of the Court. As one source notes, "the number of Supreme Court Justices is not fixed, and Congress can change it by passing an act that is then signed by the President."

However, it is worth noting that any attempt to place term limits on Supreme Court justices or make other limits would likely require a constitutional amendment.

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Court-packing is unsustainable

Court-packing is an unsustainable idea because every president will attempt to pack the court to their advantage once the practice starts. The court cannot expand indefinitely, and such an expansion would hinder its productivity.

In 1937, Franklin D. Roosevelt attempted to pack the Supreme Court with New Deal-friendly Justices. Roosevelt's plan was met with scepticism and hostility, with Congressmen calling it a "subversion of the Judiciary" and a "destruction of the democratic process". The Democratic-controlled Senate Judiciary Committee advised against it, warning that the bill would lead to an "invasion of judicial power such as has never before been attempted in this country".

Roosevelt's court-packing plan failed in Congress, but it arguably succeeded in constraining the Court's attack on the New Deal. After the plan failed, Justice Willis Van Devanter – one of the "Four Horsemen" who led the Court's opposition to the New Deal – retired and was replaced by Hugo Black. Within a few years, seven of the Court's nine justices were Roosevelt appointees.

While Biden has not come out in favor of court-packing, he is playing to a base that is unhappy with a series of decisions that they don’t like. Biden is right to resist calls for court-packing, as it is a terrible idea, proven by Roosevelt's failed attempt.

The difficulty of passing an amendment

Passing a constitutional amendment to expand the Supreme Court would indeed be a challenging endeavour, as it requires an extensive process and faces significant political obstacles. While there is no explicit prohibition against legislative changes to the size of the Supreme Court, the difficulty lies in the high bar set for amending the Constitution.

Firstly, let's examine the historical context. The size of the Supreme Court has been modified multiple times in the past by Congress, ranging from a minimum of five to a maximum of ten justices. The Judiciary Act of 1789 initially established a Supreme Court with six justices. However, in 1869, Congress expanded the Court to include nine justices, which has remained the standard since then.

Now, let's delve into the complexities of passing an amendment. For an amendment to be successful, it must navigate a rigorous procedure and secure broad support. The process typically involves the following steps:

• Proposal: Amendments can be proposed by Congress, with a two-thirds majority vote required in both the House of Representatives and the Senate. Alternatively, a national convention called by two-thirds of the state legislatures can propose amendments.
• Ratification: Once an amendment is proposed, it must be ratified or approved. This can be done in two ways. Firstly, it can be ratified by the legislatures of three-quarters of the states. Alternatively, it can be ratified by ratifying conventions in three-quarters of the states.

These requirements make it challenging to pass an amendment, especially in a politically divided nation. Achieving a two-thirds majority in Congress and the support of three-quarters of the states is a formidable task and underscores the difficulty of enacting constitutional amendments.

In addition to these procedural hurdles, political opposition and ideological differences further complicate the passage of an amendment. As we have seen with past attempts to expand the Supreme Court, such as Roosevelt's court-packing plan in 1937, these proposals often face strong resistance and criticism. Ideological divisions within Congress and the country at large can make it exceedingly difficult to garner the necessary support for an amendment.

Furthermore, the potential consequences of expanding the Supreme Court can also hinder the passage of an amendment. Critics argue that "court-packing" could undermine the legitimacy and stability of the Court, leading to a loss of public trust in the judicial system. There are concerns about the potential for political manipulation and the erosion of judicial independence if the Court is expanded to align with a particular ideological agenda.

In conclusion, while there is no explicit constitutional barrier to expanding the Supreme Court, the difficulty of passing an amendment lies in the rigorous process, the need for broad political support, and the potential implications for the Court's integrity. As a result, any attempts to expand the Supreme Court through constitutional amendment face significant challenges and are not easily achieved.

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