Is Court Packing Constitutional?
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Above: Ex-president William Howard Taft serves as Chief Justice of the Supreme Court in 1923.

In the wake of Justice Ruth Bader Ginsberg's passing on September 18, 2020, controversy erupted over whether she should be replaced ([link removed]) prior to the election.
Democrats question Trump's move to appoint Amy Coney Barrett weeks before the election on November 3. And many worry that should Biden win the election, he would attempt to "pack the court," ([link removed]) appointing enough liberal judges to have a majority and setting a dangerous example ([link removed]) that could ultimately dilute the judiciary's power and legitimacy.

What Does the Constitution Say?
According to Article II, Section 2 ([link removed]) , the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States."

There is no constitutional mandate on the timing of appointments, nor the number of seats on the Court.

While the Constitution does not specify the number of Supreme Court seats, there have been nine justices, both during Democratic and Republican administrations, for over 150 years.
Shaping the Supreme Court
The first Supreme Court, established by Congress in 1789 ([link removed]) , included six justices. As the nation expanded, the Supreme Court did as well. By 1839, with the admission of eight new states, the Court totaled nine justices. Seats remained fixed until the Civil War.

The Civil War era was marked by highly-politicized decisions regarding the Court. In 1863, Abraham Lincoln added a tenth Supreme Court justice. Although he introduced the seat because of the addition of another circuit court, according to some ([link removed]) , Lincoln also hoped to tip the balance of the Court in favor of the North.

After the war, Congress reorganized circuit districts ([link removed]) to limit southern power, resulting in a Court substantially reduced from ten to seven members. Previously, five of the nine circuit districts, traditionally home to their respective judges, were regionally dominated by southern states.
When the Republican Ulysses S. Grant came into the presidency, Congress returned the Supreme Court to nine members ([link removed]) .

FDR's Attempt to Pack the Court
In the 1930s however, political motives drove FDR to propose increasing the Court to 15 members (the origin of the phrase court packing). With new justices, he hoped to establish New Deal laws that the nine-member Court had struck down.

His "court-packing" scheme was wildly unpopular amongst Democrats and Republicans alike, who voted it down 70-20 in the Senate.
Protection of the judicial branch's independence is critical. If one party changes the number of seats in order to further its policies, it sets the precedent for the other party to do the same as soon as the chance arises. This would destroy the Court's independence and impartiality.

While the Constitution says little about the structure of the Supreme Court, the preservation of the judicial branch's independence and its constitutionally defined powers must be at the forefront. And this understanding is why education about the Constitution and its history is so important.
"The complete independence of the courts of justice is peculiarly essential in a limited Constitution... Limitations of this kind [within government] can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing." - Federalist Paper 78 ([link removed])

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The Jack Miller Center's Supreme Court Discovery Page
Want to learn more about our judicial branch? Visit the JMC's Supreme Court Discovery Page! Our page provides engaging resources and readings to learn more about the Court's role, history, and development.

Visit the Supreme Court Discovery Page >> ([link removed])
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History can always teach us something about the present, but only if it remains a priority. Without knowledge of our past, we have no basis to make important decisions about our country's future.

JMC supports those teachers who are championing education in America's history and its founding principles. Our growing network of nearly 1,000 dedicated professors are making a difference on hundreds of campuses across the country. So far, they have taught more than one million students. Will you help us reach more?

Click here to help preserve our founding principles and history ([link removed])
About the Jack Miller Center

The Jack Miller Center is a 501(c)(3) public charity with the mission to reinvigorate education in America's founding principles and history. We work to advance the teaching and study of America's history, its political and economic institutions, and the central principles, ideas and issues arising from the American and Western traditions—all of which continue to animate our national life.

We support professors and educators through programs, resources, fellowships and more to help them teach our nation's students.

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