U.S. Supreme Court

A History of Supreme Court Expansion: Threats of ‘Court Packing' Aren't New

The court had 10 justices at its largest while Abraham Lincoln was president

With Democrats still angry over what they see as Republican manipulation of the U.S. Supreme Court and worried that a majority of conservative justices will block President Joe Biden’s agenda, could Congress expand the court for the first time since the Civil War?

A move to add justices to the court would spark a political battle, and Biden has said he is “not a fan.”

He has instead created a commission to study overhauling the court, looking at how many justices sit on it, how long they serve, what cases they select to hear and other key topics. 

Meanwhile liberal Democrats in Congress have proposed enlarging the court from nine to 13. They remain furious at former Republican Senate Majority Leader Mitch McConnell who refused to consider President Barack Obama’s choice for the court, then Judge Merrick Garland, but rushed through President Donald Trump’s nomination of Amy Coney Barrett in just over a month.

Republicans are accusing them of trying to pack the court.

House Speaker Nancy Pelosi said she had no plans to move the Democratic proposal forward, but when was the last time there was a plan to add justices? What does the U.S. Constitution have to say about the court’s size and makeup?

Here is a look at key moments in the history of the country’s highest court.

What does the U.S. Constitution say?

The Constitution establishes a Supreme Court, but leaves it to Congress to determine the details, including its size.

"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." 

Beyond that, the Constitution says federal judges shall hold office “during good behavior” and that their compensation “shall not be diminished” while they are in office. It specifies that the president has the power to appoint judges with the “advice and consent” of the Senate and gives Congress the power to impeach them. 

Has the Supreme Court always had nine justices?

No, the number has varied as high as 10. Congress created a Supreme Court with six justices with the Judiciary Act of 1789, the first bill introduced in the U.S Senate.

How often has the number of justices changed?

Six times in all, until shortly after the Civil War. That’s when the number was set at nine. Congress voted in 1801 to reduce the size of the court to five justices after the next vacancy but repealed the law before one occurred. It was largest during the Civil War, when it had 10 justices, which some scholars say was intended to help President Abraham Lincoln fight slavery and keep the union intact. 

What does “packing” the Supreme Court mean?

The term “court-packing” was used to describe President Franklin D. Roosevelt’s failed plan to expand the Supreme Court to try to counter conservatives who had ruled against parts of his New Deal. The Judicial Procedures Reform Bill of 1937 would have allowed him to appoint an additional federal judge for every one who was over 70 including up to six Supreme Court justices. The plan died in a Congress concerned about judicial independence. 

How many justices did Trump nominate?

Trump nominated three justices, all of them controversial in some way. The first, Neil Gorsuch, replaced Justice Antonin Scalia but only because McConnell had blocked Obama’s choice, now Attorney General Merrick Garland, for about 10 months. Republicans claimed the nomination was too close to the presidential election. Trump’s second pick, Brett Kavanaugh, was confirmed to replace retiring Justice Anthony Kennedy after Kavanaugh was accused of sexual misconduct while was in high school and college. The third, Amy Coney Barrett, became a Supreme Court justice within two months of a presidential election after the death of Justice Ruth Bader Ginsburg.

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