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‘Court Packing’ Emerges as Issue
Historical Background
“Court-Packing” Plans

The Constitution provides that the “judicial power” of the United States is “vested in one Supreme Court” and such inferior courts as Congress may create, but it does not specify the number of judges on the Supreme Court. Through history, Congress has changed the number of justices seven times, sometimes because of the country’s geographical expansion and sometimes because of efforts to change the Court’s political orientation. In this Court Report, court expert Kenneth Jost discusses the history of justice number fluctuations throughout American history, putting in perspective recent discussions about expanding the current Court.

The size of the Court emerged in 2020 as a political issue as Democrats and liberal advocacy groups began considering the possibility of adding new seats to counteract the 6–3 conservative majority created by the party-line confirmations of President Trump’s three appointees: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

The Court originally included six justices, all appointed by President George Washington on the same day in September 1789. To some extent, all six supported the Federalist position in support of the new Constitution and all six contributed to establishing the Court as an independent branch of the national government.

The number of justices reached nine by the time of the Civil War in the 1860s and grew briefly to ten before being lowered back to nine—the number unchanged ever since. President Franklin D. Roosevelt tried but failed to increase the number of justices in 1937 after winning a second four-year term in a landslide election in 1936.

Roosevelt asked the Democratic-majority Congress to authorize the appointment of up to six additional justices for each sitting justice past the age of seventy. The president’s stated rationale was to assist the aging justices in disposing of cases more efficiently, but his real purpose was to neutralize the Court’s conservative justices who were thwarting some of his New Deal initiatives.

The so-called “Court packing” proposal provoked a strong public backlash and significant opposition in Congress, even from leading Democrats. Chief Justice Charles Evans Hughes dealt the proposal a fatal blow with a letter to members of Congress stating that the Court was up to date in handling cases and that additional justices would actually hamper efficiency. Roosevelt dismissed recommendations from his political advisers to accept a compromise and settle on just one or two additional justices.

Now for the first time since FDR’s ill-fated proposal, some Court watchers and public officials are calling for expanding the number of justices—in particular, Democratic senators and liberal advocacy groups. The suggestions are aimed at counteracting the Republican tactics used in installing two of President Trump’s appointees to what the critics call “stolen seats” on the Court—specifically, the Senate’s refusal to consider President Obama’s nomination of Judge Merrick Garland in the eight months before the 2016 election and the Senate’s seemingly contradictory decision to confirm Trump’s nomination of Judge Amy Coney Barrett barely one week before the November 2020 presidential election.

The self-styled progressive advocacy group DemandJustice.org was calling for adding new seats to the Court to “balance out Trump’s ideologically extreme illegitimate picks”—specifically, Justice Neil Gorsuch, who was confirmed in 2017 for the vacancy that Garland had been nominated to fill; and Justice Brett Kavanaugh, who was confirmed in 2018 to succeed the retiring justice Anthony M. Kennedy.

Democrats and liberal advocacy groups strongly opposed both nominees based on their conservative records on federal courts of appeals in Colorado and Washington, D.C., respectively. Both men went on to win Senate confirmation in party-line votes by historically narrow margins for Supreme Court nominees: 54–45 for Gorsuch and 50–48 for Kavanaugh.

Barrett’s party-line confirmation on a 52–48 Senate vote on Octobet 26 created a potential 6–3 conservative majority on the Court in place of the uncertain 5–4 conservative majority that had prevailed since President George W. Bush’s two appointments in 2005: John Roberts as chief justice and Samuel Alito as associate justice.

The prospect of expanding the Court suffered a setback, however, after Democrats appeared to be shy of a majority in the Senate due to convene in January 2021. Even with former vice president Joe Biden apparently on a path to an Electoral College majority in the days after the November 3 election, Democrats fell short of the number of Republican-held Senate seats that they needed to flip to hold at least fifty seats. Seemingly assured of continuing as majority leader, Kentucky’s Mitch McConnell declared on November 4 that he would not allow consideration of a bill to expand the number of justices.

‘Court Packing’ Emerges as Issue

As Barrett’s confirmation was pending, Demand Justice listed two prominent Democratic Party figures as favoring the addition of new seats to the Court: former Attorney General Eric Holder and the former Indianapolis mayor, Pete Buttigieg, an unsuccessful candidate for the Democratic presidential nomination in 2020.

Democratic senators, including New York’s Chuck Schumer and Rhode Island’s Sheldon Whitehouse, both hinted during the Barrett confirmation process at seeking to expand the Court’s membership if Republicans went through with plans to confirm her nomination before the November 3 election. Schumer was quoted as energizing the Senate Democrats on September 19 by warning of repercussions if Barrett were to be confirmed. “Let me be clear,” Schumer reportedly told his Democratic colleagues. “If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year,” the person quoted Schumer as telling fellow Democrats.

Whitehouse, a member of the Senate Judiciary Committee, used roughly the same language on October 21 as the committee moved toward the pivotal vote to send Barrett’s nomination to the Senate floor for expected party-line confirmation.

Senate Republican leader McConnell responded with a threat of his own. “Court-packing by either party would guarantee retribution when the Senate and the White House next changed hands," McConnell said, as quoted in news account on October 25. “The escalation would not end. Our independent judiciary would spiral into one more partisan battleground."

Republican attacks on possible “court-packing” increased in the days leading up to the November 3 election even as the Democrats’ presidential candidate, former vice president Joe Biden, warily avoided any commitment on the issue. Trump himself wrote in a tweet on October 22 that Biden “wants to Pack the Court with Radical Left crazies.”

For his part, however, Biden limited himself to calling for a bipartisan commission to propose changes in the Supreme Court and the federal judiciary. “It’s not about court-packing,” Biden said in excerpts of an interview with the CBS newsmagazine 60 Minutes released on October 22. “There’s a number of things that our constitutional scholars have debated, and I’ve looked to see what recommendations that commission might make.”

A 6–3 division along conservative–liberal lines seemed to presage the most lopsided ideological split on the Court since the 1940s when FDR laid the foundation for a liberal activist era by making nine appointments between 1937 and 1943 as aging justices retired or died. Later appointments by FDR’s Democratic successor, Harry Truman, and the Republican chief executive Dwight Eisenhower added conservative justices to the Court. Eisenhower is more famously remembered, however, for appointing the two most prominent figures of the liberal era: Chief Justice Earl Warren and Warren’s principal ally, Associate Justice William J. Brennan Jr.

With Barrett’s confirmation pending in September 2020, Demand Justice listed two prominent Democratic Party figures as favoring the addition of new seats to the Court: former attorney general Eric Holder and the former Indianapolis mayor, Pete Buttigieg, an unsuccessful candidate for the Democratic presidential nomination in 2020.

Democrats may push such a plan in 2021 if the party gains control of both chambers in Congress and the party’s presidential nominee, former vice president Joe Biden, defeats Trump for the White House. But Biden was disappointing some liberal Court watchers by treading softly on the issue.

Historical Background

Congress first acted to change the number of justices at the end of John Adams’ presidency by voting to reduce the size of the Court to five justices. With Justice William Cushing ill and not expected to live, the outgoing Federalist Congress wanted to prevent the incoming Republican president Thomas Jefferson from filling the anticipated vacancy.

The Republican-controlled Congress effectively nullified the reduction in the second year of Jefferson’s presidency by restoring the Court’s sixth seat. That move allowed Jefferson in 1804 to name a fellow southerner, William Johnson of South Carolina, as the first of his three eventual appointees to the Court. Johnson emerged as the first of the Supreme Court’s “great dissenters.” In 20 years on the Court, he wrote nearly half of the seventy dissenting opinions issues during his tenure.

Congress in 1807 increased the size of the Court to seven as it also created a new federal circuit to consist of the late-admitted states: Kentucky, Ohio, and Tennessee. One year earlier, Jefferson had made his second appointment by naming a New Yorker, Henry Brockholst Livingston, to succeed William Paterson after Paterson’s death. With the creation of the new seat, Jefferson consulted members of Congress from the three new states and acceded to their recommendation to name a Kentuckian, Thomas Todd, who proved to be a reliable ally for Chief Justice John Marshall in his nineteen years on the Court.

Congress increased the number of justices to nine early in 1837, just as Andrew Jackson was ending his eighth year as president, again because of the country’s westward expansion. Three presidents—James Madison, James Monroe, and John Quincy Adams—had urged Congress to create new seats so that the new justices could take on circuit-riding duties and reduce the backlog in the circuit courts. Successive Congresses refused because they did not want the sitting president to name new justices.

Jackson filled the first of the two seats on his last day in office by nominating a fellow Tennessean, John Catron, who proved to be a states’ rights supporter in the Jacksonian mold until his death in 1865. Jackson sought to fill the second seat, but his choice for the position—Alabamian William Smith—declined. The appointment fell instead to Jackson’s successor, Martin Van Buren, who tapped a states’ rights-minded Virginian, John McKinley, for the seat.

Congress expanded the Court’s membership again in 1863 by creating a tenth seat, and at the same time a new federal circuit to consist of the recently admitted states: California and Oregon. The new seat acknowledged the country’s further westward expansion and also allowed President Lincoln, who had already appointed three justices, to add one more pro-Union justice to the Court. His choice was the prominent California jurist Stephen Field, who supported Lincoln on war issues and went on to serve for a then-record 34 years until the other justices forced him to retire because of ill health in 1897.

After Lincoln’s assassination, the Republican-majority Congress punished Lincoln’s successor, Andrew Johnson, by blocking his nomination of his attorney general Homer Stanberry to succeed Catron after Catron’s death. Opposed to Johnson’s Reconstruction policies, Congress voted to reduce the number of seats on the Court from ten to seven by leaving Catron’s seat and the next two vacancies to be unfilled. The Court’s membership fell to eight with Justice James Wayne’s death in 1867; no further vacancies occurred during Johnson’s presidency.

Congress raised the number of seats to nine little more than a month after President Ulysses Grant was inaugurated in March 1869. Grant nominated his attorney general, Ebenezer Hoar, for the seat, but the Republican-majority Senate rejected the nomination by a 24–33 vote because Hoar had opposed the impeachment of Andrew Johnson and refused to use political patronage in appointing circuit court judges. The Senate approved Grant’s second nominee for the seat, a pro-Union advocate of reconciliation between North and South, Joseph Bradley, who won confirmation on a 46–11 vote. In his 22 years on the Court, Bradley’s most consequential action was to cast the deciding vote on the 15-member commission that settled the disputed 1876 presidential election in favor of the Republican candidate, Rutherford Hayes, over Democrat Samuel Tilden.

“Court-Packing” Plans

The Court’s membership remained stable without controversy for nearly 70 years after Congress settled on nine justices in 1869. The Court charted a generally conservative course during this period by striking down a number of initiatives favored by progressive advocacy groups. The Court dealt a significant setback to Reconstruction, for example, with an 8–1 decision in 1883 striking down the 1875 Civil Rights Act on the ground that Congress had no power to prohibit racial discrimination in public accommodations such as hotels or trains.

Among other decisions, the Court in 1895 blocked a federal income tax on a narrowly divided 5–4 vote; Congress and the states combined to overrule the decision by 1913 with ratification of the Sixteenth Amendment to explicitly authorize a federal tax on personal incomes. The Court dealt another blow to progressive reformers in 1895 with an 8–1 decision that limited the federal Sherman Antitrust Act by construing the law to apply only to manufacturing, not to commerce.

The Court continued to chart a conservative course in the 20th century with, for example, the notorious 5–4 decision in Lochner v. New York (1905) to overturn a state law limiting working hours for bakery employees. The Court divided 5–4 again in a second setback for labor rights advocates with a decision in 1918 to strike down a federal law prohibiting shipment in interstate commerce of any product manufactured with child labor. Congress tried to circumvent the decision by enacting a 10 percent tax on the profits of any company that employed children under age fourteen. The Court struck that law down in an 8–1 decision issued in 1922.

The Court’s collision with advancing political trends reached a climax in the 1930s as conservative justices led in striking down several of President Roosevelt’s major New Deal enactments aimed at lifting the country out of the Great Depression. The Court struck down on the same day—May 27, 1935, known as “Black Monday”—the National Industrial Recovery Act as an unconstitutional delegation of legislative power and a federal farm mortgage relief act as unfair to creditors. The rulings in both cases were unanimous.

A year later, the Court struck down the Agricultural Adjustment Act on a 6–3 vote and, also on a 6–3 vote, a law aimed at stabilizing the coal industry: the Bituminous Coal Conservation Act. The dissenters in both cases were Justices Louis Brandeis, Benjamin Cardozo, and Harlan Fiske Stone.

Roosevelt considered several plans, including constitutional amendments, to counteract the setbacks at the Court, but he decided eventually to propose in February 1937 what came to be known as the “Court-packing plan.” Major newspapers opposed the plan; other opponents included prominent New Dealers in Congress. Hughes’ letter, written as chief justice, dealt the plan a near-fatal setback by declaring the Court to be “fully abreast of its work,” contrary to FDR’s stated purpose of helping speed the Court’s work.

The full Court dealt the final blow with a series of decisions in spring 1937 upholding New Deal initiatives by 5–4 majorities that included Hughes and associate justice Owen Roberts along with the three dissenters in the earlier cases. Roberts’ change of position came to be known as “the switch in time that saved nine.” Over time, FDR achieved his goal by appointing nine justices in all over a six-year period as three of the staunch conservatives retired and the fourth died. Roosevelt also elevated Stone to succeed Hughes as chief justice and appointed two confirmed New Dealers to succeed Brandeis and Cardozo as they retired.

The episode has been taken to mean that the size of the Court is a political “third rail” not to be touched because of the likelihood of political backlash and the inevitable evolution of the Court over time with new appointments as justices retire or die. Significantly, presidential candidate Richard Nixon never called for expanding the size of the Court in his 1968 campaign even as he strongly criticized the Warren Court for closely divided decisions expanding constitutional rights for suspects and criminal defendants. Nixon succeeded, however, in transforming the Court with four appointments in his first term in the White House. Those appointments, including Chief Justice Warren E. Burger, marked the end of the liberal Warren Court and the beginning of a generally conservative bench that has prevailed, to some extent, since the late 1970s.

Any court-packing plan by Democrats after the 2020 presidential and congressional elections is certain to provoke fierce opposition from Republicans and conservatives after they have finally achieved a seemingly solid conservative majority on the Court. Even if Democrats have majorities in the House and the Senate, legislation would face a difficult hurdle in the Senate unless Democrats do away with the legislative filibuster, which generally requires a 60-vote majority to advance controversial measures. As president, Biden would face delicate political issues in finding nominees who would be acceptable to the progressive and more moderate wings of the party and to a Senate still likely to be closely divided along party lines.

 

Document Citation
Kenneth Jost, Packing and Unpacking the Supreme Court through American History, CQ Supreme Court Collection (2020), http://library.cqpress.com/scc/cqelsc-1619-114482-2961955.
Document ID: cqelsc-1619-114482-2961955
Document URL: http://library.cqpress.com/scc/cqelsc-1619-114482-2961955