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The recent death of Justice Ruth Bader Ginsburg sparked a power struggle between Democrats and Republicans in Congress. Upon Justice Ginsburg’s passing, President Trump promptly nominated Justice Amy Coney Barret to fill the Supreme Court vacancy. After a four-day confirmation hearing in the Senate, she was confirmed by a 52-48 vote.

The swift pace at which President Trump and Senate Republicans moved to nominate and confirm Justice Barrett alarmed Democrats, who wanted to wait until the presidential election was decided in order to move forward with filling the vacancy. Moreover, the speed at which the Republican-controlled Senate confirmed Justice Barrett stands in sharp contrast to its rejection of President Obama’s Supreme Court nominee, Former Judge Merrick Garland. Senate Majority Leader Mitch McConnell refused to hold a vote on Judge Garland in March of 2016 because of the presidential election in November. As he stated, “the American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” Senator McConnell and the Senate Republicans were able to keep the seat open until after the inauguration of President Trump, who appointed Justice Neil M. Gorsuch.

The polarity between Senate Republicans refusing to consider Judge Garland eight months before the 2016 election but confirming Justice Barrett eight days before the 2020 election prompted Democrats to threaten a bold response: packing the Supreme Court. Court packing is the process of increasing the number of justices in the Supreme Court, an action made viable due to the Constitution’s language regarding the judicial branch. 

Article III, Section 1 of the Constitution of the United States sets up judicial power to “be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Regarding judges, the Constitution mentions that they, “shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” Article III goes on to describe the jurisdiction of federal courts, but it does not outline any further requirements or restrictions for the size of the judicial branch. 

Article III allows Congress to define the size of the Supreme Court. Hence, Congress passed the Judiciary Act of 1789, establishing the framework for the federal courts and dictating that the Supreme Court would have one chief justice and five associate justices. This size remained until 1801, when President John Adams signed the Judiciary Act of 1801 into law three weeks before the end of his presidency. This legislation reduced the number of associate justices to four upon the next vacancy, bringing the Court down to a total of five. President Thomas Jefferson and his allies in Congress repealed the act in 1802, as they believed it was passed to limit Jefferson’s influence in government by preventing him from making an appointment during his presidency. Although a vacancy did not occur between the enactment and repeal of the Judiciary Act of 1801, the act marked the first attempt by the legislative and executive branches to manipulate the Court’s size for political purposes.

The next three instances of Congress regulating the size of the Court came with the country’s westward expansion. The Seventh Circuit Act of 1807, the Eight and Ninth Circuits Act of 1837, and the Tenth Circuit Act of 1863 added a seat to the Court for every new circuit created. Unlike the Judiciary Act of 1801, these acts were passed to accommodate newly admitted states and their needs for an effective judicial system.

After the Civil War and the assasination of President Lincoln, Congress passed the Judicial Circuits Act of 1866. Through this legislation, boundaries of circuit courts were redrawn, reducing the number of justices from ten to nine, and a process was established for the gradual elimination of seats in the Supreme Court, from ten to seven. This reorganization corresponded with the desire of the Republican-led Congress to control southern influence on the courts. The reduction of seats in the Supreme Court nullified Democratic President Andrew Johnson’s nomination to the tenth seat and prevented him from making any other appointments during his presidency. Congress once again reorganized the federal courts in 1869 through the Judiciary Act of 1869, when Republican and Reconstruction-friendly President Ulysses Grant held office. The legislation reestablished the number of justices to nine.

President Franklin D. Roosevelt became the next president to try to change the size of the Court when four conservative justices struck down many New Deal regulations they believed infringed on personal liberties. Because Roosevelt believed his reelection signaled that the American people supported the New Deal, he submitted a plan to Congress requesting the power to appoint an additional justice for every justice not retired by seventy. This would give him the power to appoint six new judges, increasing the Court’s size to fifteen. In response to the rising tensions, the Supreme Court reversed its stance and held many New Deal measures as constitutional. One of the conservative justices even retired. 

Nevertheless, Roosevelt continued to pursue court packing. He redrafted his plan to propose adding one justice per calendar year for each member of the Court who had reached the age of seventy-five. This would allow him to appoint four new justices, plus another one to fill the retired justice’s seat. Roosevelt’s court packing plan was ultimately defeated 168 days after its proposal. No attempt to change the size of the Supreme Court has occurred since. 

The history of the legislative and executive branches altering the size of the Supreme Court highlights how court packing (and unpacking) can be used as a political tool to exert influence. Roosevelt’s threat to pack the Court seemed to impact judicial behavior around the New Deal. In 1801 and 1866, Congress reduced the seats to keep the Court from potentially being replaced with justices of the opposing ideology. It is important to note that the consequences of meddling with the size of the Court are not reserved to the judicial branch: the 1801 and 1866 acts were attempts to curb the influence of President Jefferson and President Johnson.  

These three incidents highlight the implications that changing the Court’s size can have on the separation of powers doctrine. If Congress and the president can play with the Court’s size in hopes of influencing its behavior, the Court becomes overly politicized. While the Court is subject to political attention, it is supposed to be a non-political body. However, if justices are threatened with court packing and unpacking constantly, then they will worry more about appeasing politicians rather than properly carrying out their duties. This erodes the protective insulation that the separation of powers doctrine is supposed to provide. 

The notion of changing the size of the Court to influence its ideological makeup goes strictly against the principle that justices are supposed to be apolitical in their judgments. While today’s judicial system is already criticized over its increasingly partisan attitude, turning to court packing to remedy political woes will further erode the apolitical reputation our judicial system is supposed to have. Notably, the Court’s legitimacy will be threatened if it becomes increasingly seen as just another government body engaged in political bidding.

Court packing is a tall order to fulfill given current political circumstances. With Republican opposition to court packing, Democrats require control of both chambers of Congress and President-elect Biden’s support to expand the Court. While Democrats retain their majority in the House, Senate control remains to be determined by Georgia’s run-off elections, where Democrats need to flip both seats to prevent a Republican majority. Moreover, President-elect Joe Biden has only voiced support for setting up a bipartisan commission to study possible reforms to the U.S. court system, not for necessarily expanding the Court. If the other branches have justifiable reasons to believe that the Court needs to be reformed, there are other ways to do so. The threat of court packing should not be taken lightly. Altering the size of the Court has consequences that extend beyond having to create new rules for judging cases. The constitutional, political, and legitimacy-related implications of court packing and unpacking signal that today’s politicians should tread carefully.