Rise of the Issue
The idea of increasing the number of Supreme Court Justices is not new, having been done before in the early 19th century. Today, political analysts and legal practitioners are divided on whether or not court packing would be more harmful or beneficial to the country.
Some advocates have pointed to the already partisan nature of Supreme Court Justice confirmations, citing events such as the Republican refusal under Obama’s presidency to vote on Merrick Garland’s nomination to the bench. Others argue that either party moving to pack the court could upset the standards of political neutrality the Supreme Court is meant to uphold.
President Biden has recently come out in opposition to the idea of expanding the Supreme Court, echoing similar sentiments from his 2020 campaign trail. Yet, after being elected, he appointed a 36-member bipartisan commission to study potential changes to the Supreme Court.
The Supreme Court Convenes For The First Time
Six Justices gather to establish the Supreme Court under the 1789 Judiciary Act.
President John Adams Reduces The Number Of Justices On The Bench
President Adams and Congress passed the Judiciary Act of 1801, limiting the Supreme Court to five Justices with the intent of limiting subsequent President Thomas Jefferson’s judicial authority.
The Seventh Circuit Act
Jefferson and his Congress increased the numberJustices from six to seven in a federal statute.
The Supreme Court is Expanded to Nine Justices
President Andrew Jackson adds two additional Justices after Congress expands the number of federal circuit court districts.
Biden Forms The Presidential Commission On The Supreme Court Of The United States
President Biden issues an executive order creating a bipartisan 36-member committee tasked with researching and providing an analysis of current arguments regarding reforms of the Court, including a possible expansion beyond the current nine Justices.
Proponents of court packing argue that it would help restore the present imbalance between Justices appointed by Republicans versus Democrats, while opponents see this as a tactic of the governing party to have more Justices on their side of the political spectrum.
Number of Justices
Opponents point to tradition and the Supreme Court never having had more than ten Justices in the past. Proponents say that the Constitution remains silent on the subject and that historically the number of Justices aligned with the number of courts of appeals.
Opponents argue that the judicial branch’s integrity relies on it being completely separate from partisan politics, making court packing unnecessary. Proponents say that the reality is far different, and that Justices make crucial decisions that end up following partisan lines, hence the importance of rebalancing the Court.
Expanding the Supreme Court could lessen the chance of an ideological tilt.
Republicans have appointed 15 of the 19 Supreme Court Justices in recent memory. Adding Justices would ensure that it never reflects only one party’s political agenda.
There are no restrictions against expanding the Court.
The Constitution does not specify the number of Justices on the Supreme Court.
Expansion of the Supreme Court should match the number of regional circuits.
Some argue that the number of Justices should correspond to the number of courts of appeals, just like they did in the past.
More Supreme Court Justices could provide a greater diversity of opinions.
Increasing the number of Justices would provide additional points of view, and make decisions more varied in their reasoning.
Supreme Court expansion could break up existing federal circuit monopolies.
Increasing the number of members on the bench would allow for the creation of new federal circuit courts and the break up of larger districts that lean heavily towards either end of the political spectrum.
It could be seen as a move to tilt the Court to a ruling party's side of the aisle.
Many argue that the idea to expand the Supreme Court stems from the ruling party’s misalignment with the Court’s decisions, and its desire to have more Justices on its side.
Court packing does not solve long-term partisan imbalance.
Opponents explain that expanding the number of Justices alone will not change the way that these Justices are appointed, and as such simply increases the number of Justices and the possibility of imbalance.
The Supreme Court Justice is supposed to be free from partisanship.
The arguments in favor of expanding the Court go against the very principle of the ideological independence of the judicial branch. The Court is supposed to be non-partisan, regardless of the number of its Justices.
It would create a precedent for future changes in the number of Justices.
Some fear that agreeing to changing the number of Justices would legitimize the rearranging of the Court to a government’s liking, opening the way to more political interference in the judicial branch.
The Supreme Court has had nine Justices for over a century.
Proponents of tradition do not see why the number of Justices has to be changed when it is a number that has proven to work well in the past, while increasing it could have repercussions that we cannot yet foresee.