What is “Court Packing”? [History, Modern Day & Pros/Cons]

T. Josiah Haynes Contributor
What is “Court Packing”? [History, Modern Day & Pros/Cons]

Court packing is a controversial proposal for the seats on the Supreme Court to be increased above the current limit of nine.

The term court packing is actually somewhat biased. We use it because it’s a well-known phrase, but the unbiased way to refer to this concept is expanding the Supreme Court.

Opponents say it’s an attempt by one party to stack the highest court in America with idealogues who agree with that party. Proponents would call it “expanding the Court” and claim it would better reflect the political and racial makeup of the nation.

First, let’s explain the legal history of court packing, then discuss the pros and cons and where both parties stand.

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What Is Court Packing?

Court packing is when the President and Congress agree to change the size of the Supreme Court to alter its ideological makeup. It is more generously called “expanding the Court” or “increasing the justices” by proponents.

The Supreme Court (sometimes called SCOTUS, which stands for “Supreme Court of the United States”) is the highest federal court in the USA. It is the final appellate court and the ultimate arbiter in the interpretation of the US Constitution.

Initially, there were 6 appointees upon the Supreme Court, but that number has changed 6 times. Since 1869, the number of justices has been 9, despite FDR’s efforts in the 1930s.

Over the course of US history, the number of Supreme Court justices has ranged from 6 to 10. Each expansion or contraction of this number has been highly political. The political nature of the Court may be unavoidable, given that Supreme Court justice nominees must be confirmed by partisan legislatures.

Any changes to the Court would inevitably be political, moving beyond legal studies and theories.

Court packing is when government officials change the size of the Supreme Court in hopes of altering its ideological makeup. In the US, this means the executive and legislative branches of government would work together to change the current number of US Supreme Court justices.

What are the consequences of court-packing? The potential consequences of court-packing the US Supreme Court are further erosion of public trust in the Supreme Court, plus the swaying of the Court’s ideology towards whichever political party were to pack the Court.

History of Court Packing

Let’s briefly review all the changes to the Supreme Court’s size.

Not interested in the history lesson? Jump down to the arguments for court packing in the modern day.

1787 Establishment (Washington)

The US Constitution does not dictate the Supreme Court’s composition. Instead, it leaves SCOTUS’s composition to be decided by the legislative branch.

In 1787, the Congress established the high court and lower courts. They set the number of justices as 6: one chief justice and five associate justices.

Washington still holds the record for most appointed justices of any president, mainly because he nominated and appointed all of the first 6 justices.

#1: 1801 Contraction (Adams)

The Midnight Judges Act attempted to shrink the size of the high court to 5 justices upon the next vacancy, but a vacancy never opened up before this law was repealed 11 months later.

What this act did was allow John Adams to appoint 16 lower judges in his final 3 weeks in office. The act also reduced justices’ responsibilities on the lower circuit courts, which was a legitimate issue.

#2: 1807 Expansion (Jefferson)

The first significant push to change the size of the Supreme Court occurred during the administration of Thomas Jefferson.

When Jefferson was inaugurated in 1801, the US Supreme Court consisted of 6 justices. (It was within the first year of Jefferson’s administration that the Midnight Judges Act was repealed, and SCOTUS never had a 5-person bench.)

In 1807, after Jefferson’s reelection, the 9th US Congress increased the number to 7.

There may have been some non-partisan justification for this expansion. The Judiciary Act of 1787 (when Congress first established the Supreme Court) stipulated that Supreme Court justices would also act as regional judges, reducing their availability to fulfill their primary duty.

Also, from the initial 13 states’ ratification of the Constitution until this 1807 act, the states Vermont, Kentucky, Tennessee, and Ohio were admitted to the Union. With this 30% increase to the amount of states, a seventh circuit was probably needed. At that time, the number of Supreme Court justices was connected to the number of lower circuit courts.

However, Jefferson was undoubtedly a shrewd politician. For instance, he started his first presidential term by leading the failed effort to impeach Justice Samuel Chase, a Federalist rival. Some historians argue Jefferson was more than comfortable manipulating the court in order to weaken his political opponents and exert influence over the fledgling nation’s legal system.

#3: 1837 Expansion (Jackson & Van Buren)

The Eighth and Ninth Circuits Act of 1837 increased the number of judges on the Supreme Court from 7 to 9, and it reorganized the federal circuit courts.

This law came into effect immediately, which allowed President Andrew Jackson to nominate a new justice one day before he passed off the presidency to his VP, Martin Van Buren. Jackson nominated John Catron a day before he left office, then Van Buren appointed Catron four days into his presidency.

Van Buren nominated and appointed the second new justice to fill the expanded seat six months later.

All of Jackson’s second-term SCOTUS appointments came from slaveholding states. Many were alarmed that “slave-owning” interests were taking over federal affairs, a clear foreshadowing of the Civil War two decades later.

#4: 1863 Expansion (Lincoln)

President Abraham Lincoln and the 37th Congress added another justice to the Court in 1863 to reduce the number of judicial circuits representing slaveholding states. For those three years during the Civil War and briefly afterwards, SCOTUS had 10 justices.

#5: 1866 Contraction (A. Johnson)

Three years later, in the Judicial Circuits Act of 1866, Congress reduced the number of justices to 7 so as to prevent President Andrew Johnson from putting forth nominees. Interestingly enough, Johnson did sign the act into law, instead of vetoing it.

How political was this contraction? Well, Congress vehemently disagreed with Johnson on a number of issues, even leading to an impeachment based on Johnson’s violation of an 1867 law later found by the Supreme Court to be “invalid” or unconstitutional.

Also, this act was heavily influenced by Chief Justice Salmon P. Chase, who seemed to be advocating for an odd number of justices to prevent ties, as well as an increased salary for a reduced number of justices.

#6: 1869 Expansion (A. Johnson & Grant)

Under President Ulysses S. Grant, the Congress passed another congressional act in 1869 which set the number of justices back to 9, where it has remained ever since.

Attempted 1937 Expansion (F. Roosevelt)

President Franklin Delano Roosevelt (FDR) of New York was the last president to make a serious attempt at court packing. Unlike previous expansions, this attempt failed.

In the 1930s, President Roosevelt was frustrated with the conservative justices on the high court who kept striking down his New Deal legislation. He intended the New Deal to help the nation recover from the Great Depression, but court decisions by GOP-appointed justices declared his policies unconstitutional.

FDR planned to appoint two new justices for every serving justice over the age of 70½ who did not retire. FDR never put his plan into action, though some historians believe he had the votes in Congress to do so. 

Many of these same historians also believe the conservative majority unofficially compromised with President Franklin D. Roosevelt by allowing some of his New Deal legislation through.

Court Packing in the Modern Day

Polling suggests that court packing remains unpopular. Of course, different polls will show different numbers, but we’re looking at a range of polls. 

Overall, just 26%-27% of Americans favor adding justices to the Supreme Court:

  • 41%-50% of Democrats support the move
  • 17%-26% of Independents support
  • 4%-9% of Republicans support

Recent actions taken by Democrats: In 2013, Democrats eliminated the filibuster for circuit court judges — meaning only a simple majority of Senators is needed to approve circuit nominees. Despite the polls, progressive Democrats have advanced legislation to expand the high court. To date, the bills have gone nowhere and received little support from the White House. However, during the 2020 presidential election, Joe Biden promised to form a committee that would look at ways of reforming the judiciary. After his inauguration, President Joe Biden signed an executive order establishing this committee.

Recent actions taken by Republicans: In 2017, when President Donald Trump nominated Neil Gorsuch to SCOTUS, the Republican-controlled Senate eliminated the filibuster for SCOTUS nominees — meaning only a simple majority of Senators is needed to approve a SCOTUS nominee. In 2019, Senators Mitt Romney and Mike Lee introduced a bill that would permanently fix the number of Supreme Court justices at 9. It is also widely known that Chief Justice John Roberts, appointed by Republican President George W. Bush, is sensitive about the public perception of the high court and has tried to separate SCOTUS from politics.

Pros & Cons of Expanding the Supreme Court

Pros of expanding the court:

  • The balance is currently off. Ideologically, there has been a 5-4 majority on the Supreme Court in favor of conservative justices for over 40 years. That majority expanded to 6-3 in 2020 with the appointment of Amy Coney Barrett. Proponents of expanding the court believe there should be an ideological balance that is more indicative of the nation’s political beliefs and that is more susceptible to checks and balances.
  • Obama was robbed of a nominee. Democrats argue it was unconstitutional when then-US Senate Majority Leader Mitch McConnell refused to hold judiciary committee hearings for Obama-nominee Merrick Garland in 2016. They allege Republicans essentially stole a Supreme Court seat by stalling Senate proceedings until Trump took office. Many Democrats believe that expanding the court will rectify that injustice.
  • There are 13 circuit courts. At one time in American history, the number of justices corresponded to the number of circuit courts. There are now 13 circuit courts, so there should be a matching number of justices, proponents claim.
  • It’s completely legal. The US Constitution allows Congress to determine the size of the Supreme Court. Even though the size of the court has not changed in 150 years, there is no law against expanding the court.
  • Important new laws will be struck down if the court is not expanded. Civil rights, voting rights, immigration reform, animal rights, police reform, gun control — those are just a few important political issues that a conservative Supreme Court might hinder. This conservative court has already gutted abortion rights. What’s next?
  • Democracy should be promoted and protected. Proponents of court expansion, especially progressive leftists, see court packing as one of the best ways to promote or protect democracy. The replacement of Justice Ruth Bader Ginsburg with Amy Coney Barrett put the number of “conservative” jurists at 6. Democrats contend this does not reflect the political leanings of the nation, citing the fact Democrats have won the popular vote in eight of the last nine presidential elections. The country’s population is not being reflected in the ideological makeup of the Supreme Court.

Cons of court packing:

  • Judicial independence is important. The Supreme Court should not be political. An independent judiciary is a pillar of conservative thought and important to the system of checks and balances established in America. Republicans contend that judges must make rulings based on constitutional text rather than political ideology. Anything other than a legal interpretation of the Constitution itself is said to be the work of an “activist judge” who illegally legislates from the bench. Opponents of court packing argue that adding justices to the Supreme Court due to temporary political advantages would ultimately weaken the court’s independence.
  • Public trust is important. The Supreme Court is already losing public trust in 2022. However, a clear effort by one party to add justices to the high court would further erode public trust in SCOTUS. Continued loss of trust in American institutions adds to the national sense of malaise that may lead to further political divisions and possibly even political violence, which is completely unacceptable.
  • Everything the left is complaining about was completely legal. Opponents of court packing would say that the conservative right has played by the rules to arrive at the 6-3 ideological majority upon the high court. Mitch McConnell was legally allowed to prevent Merrick Garland’s SCOTUS nomination hearing. Trump was legally allowed to appoint Amy Coney Barrett after Ruth Bader Ginsburg tragically and suddenly passed away. Just because 2-term president Obama only appointed 2 justices and Hillary Clinton didn’t win the presidency in 2016 aren’t reasons to break a century and a half of precedent — no law has been broken.
  • No one packed the court after liberals got lucky. When President George H.W. Bush nominated David Souter to the high court in 1990, he was expected to be conservative. Within a few years, he reliably voted with the Court’s liberal wing. In 2009, Souter was replaced with Sonia Sotomayor, arguably even more liberal than Souter. Similarly, Elena Kagan’s predecessor, John Paul Stevens, was a lifelong Republican — likely appointed because of his political leanings — yet ended up consistently voting with the liberal wing. Conservatives didn’t pack the court then. Why would liberals get to pack it now?
  • Nine is established precedent. Republicans argue that 9 is the right number of justices because of the established precedent that has withstood 150 years of changing political landscape. Adding more justices could set a new precedent where new justices would be added each time the Senate and White House changed hands.

Looking to the Future

It’s unlikely that a constitutional amendment or other mostly-permanent solution will lead to expanding the Supreme Court. However, it’s possible that a court-packing plan may eventually change this precedent standing over a century.

Regardless of your stance on this topic, it’s important to understand all sides of important political issues. Learn what America is thinking in just 5 minutes each morning by signing up for our newsletter, and read more of our breakdowns of the pros and cons of controversial topics like court packing.