This is part 5 of the Saving the Court series. I would encourage you to read previous posts, including
- Saving the Court: Announcing the Project (Part 1)
- Saving the Court: How We Got Into This Mess (Part 2)
- Saving the Court: A History of Supreme Court Reform Efforts (Part 3)
- Saving the Court: The Nomination and Confirmation Process (Part 4)
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History of the Size of the Supreme Court
The size of the Supreme Court has changed several times throughout our country’s history. The Judiciary Act of 1798 set the number of Justices at six. The Judiciary Act of 1801 reduced the number of Justices to five. One year later, the Judiciary Act of 1802 returned the Court to six Justices. In 1807, with the addition of a seventh circuit court, the size of the Court was increased to seven. Two additional circuits were added in 1837, and the Supreme Court also grew by two Justices, setting the total number at nine.
The Civil War prompted further change to the Court. In 1862 and 1863, a tenth circuit was added, and with it, the Supreme Court grew to ten Justices. In 1866, at the conclusion of the Civil War, Congress reduced the number of Justices from ten down to seven. Just three years later, in 1869, the number of Justices on the Supreme Court was once again increased to nine, where it has remained ever since.
However, that does not mean that efforts have not been made to change the size of the Court since that time. Theodore Roosevelt led an effort in 1912 to increase the number of Justices on the Court. In 1937, President Franklin Roosevelt proposed a far-reaching plan to significantly increase the size of the Court to as many as fifteen Justices. Although these and other efforts failed, the size of the Court seems to be always up for debate. Without fail, whether successful or not, calls to change the size of the Court are made for political reasons. Even in cases where the change in size is warranted, one party or the other benefits politically from the change.
Current Proposal to Add Seats to the Supreme Court
The current call to increase the size of the Court is no different. Democrats have suffered from Republicans’ ability to place friendly Justices on the Court. Increasing the size of the Court is a way for Democrats to fight back and restore the Court to a sort of equilibrium. Of course, the equilibrium Democrats propose favors them politically.
It is wrong to say that the Court is intended to be non-political, so reform efforts must also be non-political. There are two problems with this way of thinking. First, it is impossible to separate the good-government motivations for reform from the partisan. Second, Congress has the Constitutional power to shape the Supreme Court as it sees fit. Congress, by its very nature, is a highly partisan institution, and everything it does is in the very least tinged with partisanship. It is unrealistic to expect it to do otherwise.
There is nothing inherently wrong with partisan efforts to reform the Supreme Court. They have happened throughout history. The important thing is to recognize and acknowledge the political motivations behind any reform proposal.
The current proposal being floated by Democrats is to increase the Court to thirteen members. By adding four new members to the Supreme Court, Democrats hope to have a slight 7-6 majority.
Obviously, Republicans are opposed to this plan. They refer to it as “Court packing” and believe that it is being done for partisan reasons. Democrats, on the other hand, refer to their plan as “unpacking the court,” referring to what they feel were Republican norm-breaking moves to block Merrick Garland from the Court, and rush Amy Coney Barrett onto the Court.
However, Democrats do not view proposals to expand the Court as purely political. They feel the norm-violating actions that led to the current makeup of the Court, as well as the misalignment of the current Court with prevailing views and values of the American public is a threat to the health of our democracy. They view the unbalanced Court as threatening Court precedence in areas such as reproductive rights, racial justice, worker’s rights, voting rights, and other hard-fought rights gained over many years of struggle. Expanding the size of the Court, they feel, is a constitutional and immediately achievable way to address that threat, as well as restore legitimacy to the Court.
Expanding the size of the Court is also a way to incorporate more diverse Justices with professional perspectives not currently represented on the Court. According to Alicia Bannon, Director of the Judiciary Program at The Brennan Center for Justice, “That diversity could come from the inclusion of Justices with experience in different sectors of the legal community or even the public sphere more generally. It also might include individuals of diverse religious, socioeconomic, racial, geographical, or other demographic backgrounds. Expanded diversity could enrich the Court’s decision-making, and a Court that was drawn from a broader cross-section of society would be well received by the public.”
Proponents claim there is also a practical advantage to expanding the Court. For instance, a larger Court may be able to hear more cases and spend more time on emergency orders, what has come to be known as the “shadow docket.” Today’s Supreme Court decides about half as many cases in a year as it did during the 1980s, when the Court routinely decided 150 to 160 cases each year. By comparison, the Court only decides 70 to 80 cases a year now. During the 2023 term, that number was down to just 58.
As might be guessed, opponents to the idea of increasing the size of the Supreme Court have largely the opposite view of proponents. They do not view the philosophical direction of the current Court as a threat to the health of our democracy. In fact, just the opposite. They view the retrenchment taking place recently in the Court as necessary for our continuing democracy.
They also view expansion as a threat to the independence of the Court. They warn that the Court’s check on the other branches of government could be undermined by a Congress that can change the size of the Court any time it issues a decision the majority in Congress disagrees with. They claim that “court packing” tends to undermine the Justices’ willingness to maintain their independence from the very body they are supposed to act as a check toward. Of course, Congress’s ability to change the size of the court at their discretion is one way that Congress can act as a check on the judiciary.
Opponents to expanding the Court also point to the traditionally strong and bipartisan norm of treating Court expansion as something that just is not done. Both Democrats and Republicans historically have celebrated Congress’s refusal to pass FDR’s Court packing proposal. Members of both parties have a longstanding distaste for changing the size of the Court to suit political preferences.
Opponents also point to leaders in other countries that used court expansion as a means of transferring power to the Executive. In particular, they point to Carlos Menm in Argentina, Hugo Chavez in Venezuela, and Recep Tayyip Erdogan in Turkey as leaders who added friendly justices to their countries’ supreme courts as a way of consolidating power for themselves. By contrast, these opponents to Court expansion point to strong democracies around the world that have retained a firm commitment to judicial independence and have avoided making changes to the size of their highest courts.
Rather than maintaining and strengthening the Court’s legitimacy, opponents of Court expansion argue that increasing the size of the Court will destroy the Court’s legitimacy. They argue that decisions made by a Court that was expanded for nakedly partisan reasons would not enjoy the type of public support the Court’s decisions have received in the past. In addition, they say that Court packing now led by a Democratic majority in Congress would likely be met with continuous cycles of expansion-reduction as Republicans take over the majority. Supreme Court reform, particularly the size of the Court, would be on the agenda of every incoming Congress. The prospects of an ever-changing Supreme Court, they warn, does not bode well for the Court, the country, or our democracy.
Discussion: On the surface, I am a fan of Court expansion. I agree with those that argue that Republicans violated norms and perverted the system to “steal” two seats from Democrats. This violation of norms cannot go unanswered. The Supreme Court, as it now stands, is unbalanced and philosophically out-of-step with the views and values of the American public. This lack of balance and philosophical mismatch—not Court expansion—has led to the current legitimacy crisis faced by the Court.
In particular, I am sympathetic to expanding the size of the Court for historical reasons. For a good part of our nation’s history, the size of the Court was linked to the number of circuit courts. We currently have thirteen circuit courts, and I think there is historical justification based on this fact to increase the number of Justices on the Supreme Court.
There are two ways to look at the idea of expanding the Court. If you are convinced, as many Court observers are, that the current court has an extremist agenda they are carrying out and that that agenda is intended to roll back rights formerly enjoyed by Americans, then expanding the court in an effort to stop this effort is a reasonable way to reform the Court.
Many, particularly on the left (but not exclusively) have opined that the Court, particularly during the 2022 and 2023 sessions, is acting as an activist political body rather than as a deliberative judiciary, and allowing it to continue in this way threatens our democracy. University of Texas Law Professor Steve Vladek commented that the current Court is acting more like a mini, unelected legislature, creating law from the bench rather than interpreting laws passed by Congress or regulations implemented by government agencies.
From this view, Court expansion makes sense as a way to reign in the excess of the Supreme Court and to return the Court to a judicial body, rather than a super-legislature. Expanding the Court can also serve to bring the viewpoints expressed by the Court more in line with the thoughts of the American people.
In my opinion, the concern that expanding the Court will set off a tit-for-tat battle in Congress to expand then contract the Court over and over again, is overstated. First, changing the size of the Court is well within the purview of the Constitutional powers granted to Congress, so it’s not like Court expansion would be some underhanded political trick. The Founding Fathers left it to Congress to decide how many Justices should serve on the Supreme Court and gave them the power to change that number as they saw fit.
Second, the feared tit-for-tat battle could not be waged unless the makeup of Congress and the presidency aligned perfectly. Changing the size of the Court, logistically speaking, is no easy task. Even if one party could muster enough votes in both the House and Senate, just like with any other bill, the legislation could be vetoed by the President if s/he didn’t agreed with the proposal. In that case, it would take a supermajority in Congress to override the President’s veto. No easy task.
On the other hand, if Court expansion is being proposed solely to return trust and legitimacy in the Court, I’m afraid it won’t work. At least in the short term, Court expansion is going to be viewed as a political move, further damaging the legitimacy of the Court. In other words, if Court Expansion is passed for what appear to be purely political reasons (which I think is inevitable), the American public is likely to further disapprove of the Court, tanking their already record-low approval numbers. In time, I expect that those approval numbers would increase as the nation acclimates to the new normal. But in the short-term, I believe Court expansion will hurt the Court’s legitimacy.
Like all of the reforms analyzed as part of this project, Court expansion has a downside. Even if you believe that expanding the Court is the best and/or most expedient way to save the Court, you also have to recognize that such a move is almost certain to further damage the Court’s reputation and legitimacy. It may be worth it, but Court expansion is by no means a perfect solution.
In the next installment, we’ll look at reform proposals to implement term limits on Supreme Court Justices as well as uniform appointment procedures that could guarantee that every president has a minimum of two appointments to the Supreme Court.
