Article III of the Constitution created the United States Supreme Court, but it didn’t give much detail about how the Court should actually operate. Many of the rules are decided by the court itself, but the number of justices is decided by federal law.
The Supreme Court’s size changed seven times in the first 80 years of its existence. Changes to the court’s size are political, such as when John Adams reduced the Supreme Court’s size to prevent Thomas Jefferson from appointing justices to the court.
At one point, there were only five justices on the court, and as many as ten justices before Congress settled on having nine in 1869 under the presidency of Ulysses S. Grant.
These justices serve terms for life or until retirement. This rule was put in place so judges wouldn’t have to worry about the political consequences of their decisions. The idea was that political pressure to rule in certain ways would be avoided because of these lifelong terms.
The long terms of Justices, as well as their ultimate power to interpret laws, has led many to seek control of the Supreme Court – through a strategy known as court-packing.
What is Court-Packing?
Supreme Court justices make rulings based on a majority vote. Since there are nine of them, at least five must agree before a decision is passed.
Court-packing is the strategy of increasing the number of judges on the Supreme Court to benefit a political goal. That’s how the idea started: One president thought that by adding more judges, he could influence the vote in his favor.
Court-packing was first tried by former U.S. President Franklin Delano Roosevelt to expand the Supreme Court to fifteen seats after receiving unfavorable rulings for his policies in the 1930s. The Supreme Court had found that many of Roosevelt’s agencies created as part of his “New Deal” plan were unconstitutional. This is because they attempted to take over some power from Congress.
Rather than accept the rulings, Roosevelt threatened to add six more justices favorable to the New Deal to the court. He argued that it was within Congress’ power to expand the court. This threat would come to be known as Roosevelt’s attempts to “pack” the Supreme Court, a term used to describe plans to expand the Supreme Court for political gains.
Defeat of Court-Packing
Roosevelt’s party, the Democrats, were split on the issue of court-packing. Members of the Democratic Party began to shift away from Roosevelt. They understood that he was threatening the Supreme Court’s independence and that this could backfire and someday allow Republicans to expand the court even more. Ultimately, his attempts to spearhead court-packing law in Congress were defeated by his party, which prevented a vote on the bill.
Court-packing originated from attempts to take political control over the Supreme Court. Democrats have threatened to add more judges that support their views – but where would it end? Would the next Republican government then also add new judges to outnumber the Democrat ones?
Court-packing has come into the news again as the Democratic Party once again toys with the idea of packing the court. Democrat President Joe Biden has come under pressure to agree to court-packing. Reluctant to commit to any viewpoint yet, he suggested putting together a commission of constitutional scholars who can study the matter and make recommendations for reforms.
But court-packing is difficult to implement and can easily backfire, which is why it hasn’t been tried in over 100 years.