Why the Supreme Court has Nine Justices | Opinion

In recent years, partisans on both sides of the political aisle have accused the sitting president of trying to "pack the courts." Democrats are now making those accusations with a vengeance. Democratic presidential nominee Joe Biden said the nomination of Amy Coney Barrett is "the court-packing the public should be focused on." Biden ally and Delaware senator Chris Coons asserted that the confirmation of Barrett would "constitute court-packing." Longtime Democratic Senate Judiciary Committee member Dick Durbin contended, "The American people have watched the Republicans packing the court for the past three and a half years."

That's not what "court-packing" means. Throughout American history, presidents routinely tried—with some ease when they were of the same party as the majority of the Senate, with some difficulty when the Senate was in unfriendly hands—to appoint judges who share their own visions of the Constitution and American governance. When vacancies open up on the bench due to the death or retirement of sitting judges, presidents fill those seats with new judges who share their values. What else would they do?

"Court-packing" is something else altogether: creating new seats on the courts to be filled immediately, bypassing the ordinary process of filling routine vacancies. We are increasingly seeing proposals to do exactly that. The framers of the Constitution opened the door to this possibility by leaving the structure of the federal judiciary largely undefined. The Constitution specifies that there will be "one Supreme Court" and "such inferior courts as the Congress may from time to time ordain and establish." The Constitution mentions that there will be a "Chief Justice," but it otherwise does not detail how the Supreme Court will be organized. That has been left to statute. That is a power that can be abused.

The First Congress created a Supreme Court with six justices, including the chief justice. Business for the Court was slow enough that the justices were also given the responsibility of "riding circuit" to individually hear cases in different sections of the country. Although circuit riding was significantly reduced in 1869, and finally eliminated in 1911, its vestiges still remain with each justice individually taking emergency appeals from the lower courts in his or her circuit. The circuit system, and the nature of early federal judicial business, tied the justices to specific geographic areas for most of the 19th century. There was a strong norm that new justices would be selected from the circuit that they would ride, creating regional representation on the Court.

As new states were added and their populations grew, the circuit lines were redrawn and sometimes new justices were added to handle the workload. After the new "western" states of Kentucky, Tennessee and Ohio were added to the Union, a seventh seat on the Court was created with a western circuit. With the rapid western growth of the country, the circuits were reorganized and two new seats were added, bringing the Court up to nine seats. Politics was unavoidably involved in the timing of the creation of the new seats, but the expansion of the Court from six to nine justices responded to a widely recognized increase in the judicial workload. The western states (along with the justices themselves) had been lobbying for the new seats for years before the stars finally aligned in Congress.

During the Civil War, the Republicans and the Supreme Court circled each other warily. Chief Justice Roger Taney, a Democrat who had drafted the pro-slavery Dred Scott opinion, feared he would be arrested by the Union army on orders from the president. The Court carefully avoided a direct confrontation with the Republicans until the Civil War and Reconstruction were over. Abraham Lincoln got three immediate vacancies on the Court when two justices died and another resigned. The Republican Congress gave him an additional seat to fill by creating a 10th justice for the Pacific coast. When Lincoln died and the congressional Republicans found themselves at loggerheads with President Andrew Johnson over Reconstruction, they scheduled a gradual reduction of the Court back down to seven justices so that Johnson would never have an opportunity to fill a seat. As soon as Johnson left office, Congress brought the Court back up to nine justices, where it has remained ever since.

The possibility of increasing the number of justices to artificially give one party greater influence over the Court came to be recognized as the ultimate violation of constitutional norms, even though Congress had the legal authority to create seats to "pack" the Supreme Court. When the Populists started threatening radical reform of the Court at the end of the 19th century, mainstream politicians in both the Democratic and the Republican Party denounced them for "revolutionary" proposals that risked subverting the "independent tribunal" that "safeguards the rights of every citizen." They proposed to "pack the court" and gamble the "security of this nation" because they were too impatient and too willful to advance their policies "in the ordinary way." The Populists retreated, but their commitments were never put to the test because they could not assemble the kind of electoral support needed to gain power.

Barrett hearing
Supreme Court Justice nominee Judge Amy Coney Barrett is sworn in during the Senate Judiciary Committee confirmation hearing for Supreme Court Justice on Capitol Hill on October 12, 2020 in Washington, D.C. Kevin Dietsch - Pool

The question returned when the Republicans were routed from the national government in the Great Depression, and extremists in Congress began talking about packing the Supreme Court. Franklin D. Roosevelt's first term came to a close without a single vacancy opening up on the Court (in part because the Democrats had cut the pensions of retiring judges as a cost-saving measure), and with important parts of the New Deal in shambles because of hostile judicial decisions. Nonetheless Roosevelt declined to endorse court-packing and refused to even talk about the courts as he cruised to reelection in 1936.

Soon after his second inauguration, Roosevelt revealed a shocking plan to "reorganize" the federal judiciary. To address the problem of "aged or infirm judges" who were too overburdened by their work, the president proposed to add a new justice for each sitting justice over the age of seventy, giving him an immediate majority on a new 15-member Court. Congressional Republicans immediately rephrased the president's proposal as, "I am asking for power to pack the Supreme Court to do my will, whether it is constitutional or not."

More importantly, congressional Democrats were divided over the plan, especially in the Senate. Even as the Court upheld New Deal measures and one of the conservative justices retired, Roosevelt continued to press for his plan. The Senate Judiciary Committee finally issued a report that one newspaper columnist privately characterized as "almost like a bill of impeachment." It denounced Roosevelt's proposal as being "in direct violation of the spirt of the American Constitution." It would create a "vicious precedent which must necessarily undermine our system." Court-packing "amounts to nothing more than the declaration that when the Court stands in the way of a legislative enactment, the Congress may reverse the ruling by enlarging the Court. When such a principle is adopted, our constitutional system is overthrown!" The Senate report thundered:

This is the first time in the history of our country that a proposal to alter the decisions of the court by enlarging its personnel has been so boldly made. Let us meet it. Let us now set a salutary precedent that will never be violated. Let us of the Seventy-fifth Congress, in words that will never be disregarded by any succeeding Congress, declare that we would rather have an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defense of the liberties of the people, than a Court that, out of fear or sense of obligation to the appointing power, or factional passion, approves any measure we may enact. We are not the judges of the judges. We are not above the Constitution.

Even Democratic members of the committee hoped to "set an example that will protect the independent American judiciary from attack as long as this Government stands."

The court-packing plan was defeated on the Senate floor, where Democrats enjoyed a 76-16 majority over the Republicans. It was the first major defeat in Congress that Franklin Roosevelt had suffered during his presidency. It contributed to a permanent fracturing of his political coalition that hampered his legislative agenda for the remainder of his term. The court-packing plan was long seen as a blight on his presidency second only to the wartime detention of Japanese Americans and others deemed insufficiently loyal to the United States.

Since then, even when the Court has issued decisions that obstructed a president's political agenda, court-packing was understood to be beyond the pale. Court-packing would be an announcement that politicians are above the law, and few politicians have been so bold as to attempt to grasp that mantle.

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University, visiting professor at the Georgetown University Law Center, and the author of Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court and Constitutional Leadership in U.S. History.

The views expressed in this article are the writer's own.