Earlier this month, President Joe Biden signed an executive order establishing a presidential commission to study the Supreme Court and announced a bipartisan list of commissioners. Though the commission’s purview is far-reaching—touching on such topics as the length of service, turnover in office, case selection, the confirmation process, and, notably, membership size—it is not required to make recommendations.
The last topic, the size of the Supreme Court, is among the most divisive facing the commission, since even as the Court’s jurisprudence has oscillated over the last several decades, the size of the Court has remained steady at 9 justices.
However, this was not always the case: The Supreme Court has changed size six times in its long history, most recently with the Judiciary Act of 1869. Since 1869, occasional battles over the size of the Court have recurred, most famously with the “court-packing” plan offered by President Franklin Delano Roosevelt in 1937 and continuing through today, with an effort proposed by congressional Democrats last week to expand the Court.
Today’s proponents of Court expansion are missing a key point from this long history, however: Getting ahead of public opinion and failing to obtain institutional support across the three branches of government will doom any restructuring perceived as packing the courts.
Acting in accordance with the Judiciary Act of 1789, President George Washington appointed the first 6 Supreme Court justices, and although they had lifetime appointments, their actual tenures in office were relatively short and replacements proved difficult to find. (Over his two terms in office, Washington would appoint a total of 10 individuals to the Court, more than any subsequent president. Even Franklin Roosevelt, during his twelve years in office, appointed just 8.)
In January 1801, the lame-duck Congress under Federalist control passed a new Judiciary Act that proposed to reduce the size of the Court to 5 justices—a change set to take effect the next time a vacancy arose. The Jeffersonian Democratic-Republicans took back control of the House and Senate two months later, and in March 1802, they undid the prior effort. During the eleven months the law had been in effect, no vacancies had arisen. The Democratic-Republicans then passed a new judiciary act that changed various operational aspects of the federal judiciary but left the Supreme Court’s membership at 6.
Over the next several decades, the size of the Supreme Court grew alongside the nation, with Congress adding new circuits for the justices to ride. The Court was expanded to 7 justices in 1807, to 9 justices in 1837, and then to 10 during the height of the Civil War in 1863.
After the war, with the reactionary Andrew Johnson president, Radical Republicans in Congress made the question of the Court’s size a political issue. Chief Justice Salmon Chase, a Lincoln appointee who was eager to curb Johnson’s powers, urged Congress to limit the president’s power to make new appointments to the Court. In 1866, Congress passed an act that mandated the next three vacancies not be replaced—meaning that Johnson made no more Court appointments. Two seats were eliminated in this way, bringing the Court down to 8.
But in 1869, with Johnson a lame duck, Congress passed the Judiciary Act of 1869 (commonly known as the Circuit Judges Act) that restored the Court to 9 justices. Initially pocket-vetoed by Johnson, the bill was passed for a second time and signed into law by new president Ulysses S. Grant.
During the 1930s, the size of the Supreme Court became an explosively political issue. Franklin D. Roosevelt, swept into office to combat the Great Depression in 1932, promptly set about pushing through his ambitious and sweeping New Deal agenda—creating new programs, setting up his famous “alphabet soup” of federal agencies, and transforming the nature and extent of government involvement in the economy.
However, the backing of Congress and the public did not translate into judicial support for all of Roosevelt’s programs. Four elderly justices—Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter, all born in 1866 or earlier—had earned from liberals the moniker of “the Four Horseman” for their opposition to New Deal legislation. Justice Owen Roberts often added a fifth vote to the conservative bloc.
In May 1935, after the Court struck down one of the pillars of New Deal, the National Industrial Recovery Act, Roosevelt carped in a press conference about the Court’s “horse-and-buggy definition of interstate commerce.” A year later, after the Court struck down a state-level minimum-wage provision in June 1936, FDR criticized that decision, too, during a press conference, saying it left a “‘no-man’s land’ where no government can function.” In all, the Court ruled parts of the New Deal unconstitutional in six cases between 1933 and 1936.
Roosevelt, working with his attorney general and a tiny team of government lawyers, secretly hatched a plan to change the very nature of the Supreme Court. They did not discuss the plan in advance with Congress. They did not discuss it with any justices. They did not discuss it with the president’s cabinet. Even FDR’s closest political advisers were left in the dark.
Following his re-election in 1936, Roosevelt felt the moment had come to strike. He was at the peak of his popularity: He had won all but two states and taken 61 percent of the national popular vote; Democrats had grown their majorities in both the House and Senate; and forty-two of the nation’s governors were either Democrats or independents. There would be no better chance to make his move.
And so, on February 5, 1937, sixteen days after he was sworn in by Chief Justice Charles Evans Hughes and three days after he hosted the Supreme Court justices for dinner at the White House, Roosevelt sent a bombshell message to Congress proposing a law that would allow the president to name an additional justice to the Supreme Court for every member over the age of 70 who did not retire voluntarily. At that point, 6 of the justices were over 70—so, in effect, FDR wanted to add as many as 6 more justices, bringing the size of the court to 15.
Battle lines were quickly drawn, with the debate in Congress consuming much of the 1937 legislative calendar. Critics of the scheme derided Roosevelt’s plan for wanting to “pack” the court. Polling showed Americans divided about evenly for and against, but then as now, the loudest critics came from the opposition press. Unlike today’s slim Democratic majority, Roosevelt’s party dominated the House and the Senate by wide margins—but many key Democrats, including some of his staunchest supporters, immediately came out against his proposal.
Crucially, opposition came from members of the Supreme Court itself. Chief Justice Hughes arranged on March 21, 1937, to give an open letter to Sen. Burton Wheeler, a longtime FDR ally who strongly opposed the court-packing plan. Hughes’s letter rejected the rationale that Roosevelt had offered as a cover for the scheme—that having more justices would lighten the Court’s workload. To the contrary, Hughes noted, “There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.” The chief justice subsequently testified before the Senate Judiciary Committee against the proposal largely on grounds of efficiency.
At the same time, the Supreme Court took a decidedly more dovish turn. In March and April, 1937, in one ruling after another, the Court upheld key provisions of the New Deal. Some of the decisions were unanimous, while others were 5-4 votes in which Justice Owen Roberts sided with the Court’s more liberal wing—a move dubbed the “switch in time that saved nine.”
Despite those rulings, the fight in Congress over FDR’s proposal dragged on for months. The announcement in May 1937 by Justice Willis Van Devanter that he intended to retire eroded support for the plan. So did the death in July 1937 of the Senate majority leader, Joe Robinson, who had had been FDR’s greatest congressional ally in this effort even though he didn’t believe it would succeed.
By the time the proposal was finally defeated in the Senate on July 22, 1937, Roosevelt had fruitlessly spent so much political capital, and created such ill will, that his legislative agenda ground to a halt. The court-packing scheme had effectively ended the New Deal.
With FDR’s failed effort standing as a cautionary tale, the idea of expanding the Supreme Court faded from politics in the ensuing decades. But it recently surfaced anew, if indirectly, as a result of increased partisanship around confirmation hearings of new justices. When asked about his plans for Court expansion during the first presidential debate last September, Joe Biden demurred on the issue, saying only that the “American people should speak.” The presidential commission announced this month fulfills his campaign promise to investigate the issue.
Meanwhile, Democrats Rep. Jerrold Nadler and Sen. Edward Markey last week introduced a bill that would expand the Court from 9 justices to 13, once again giving the Court the same number of justices as there are federal circuits. In the press release describing their proposal, the congressmen cast it as a response to Republican actions, most notably Mitch McConnell’s denial of a hearing for Obama nominee Merrick Garland in 2016 and the broader push to put conservative judges on the federal bench.
Little political will seems to exist to support Nadler and Markey’s proposal. House Speaker Nancy Pelosi says she has no plans to allow the bill a vote on the House floor, and although President Biden did create a commission to study the Court, he previously declared himself “not a fan” of court packing. Likewise, Justice Stephen Breyer—a liberal who is widely expected to announce his retirement during Biden’s term in office—has warned against efforts to increase the size of the Court, citing the risk to public confidence in its decisions.
At the same time, a recent Ipsos poll found that a majority of Americans want to end the practice of lifetime appointments for Supreme Court Justices—an action that would presumably require amending the constitutional clause that says federal judges “shall hold their Offices during good Behaviour.” Significantly, the same poll uncovered less support for expanding the size of the Court: only 38 percent of respondents said they thought it a good idea.
The history of efforts to change the Court’s size offers mixed guidance for those considering doing so now. In the 1860s, the Republicans in Congress had the private backing of Chief Justice Chase and the votes necessary to shrink the Court to tie President Johnson’s hands. In 1937, President Roosevelt’s decision to act in secrecy and suddenness rather than prepare a political coalition to support his Court-packing plan proved a huge miscalculation. In 2021, setting aside the question of whether changing the size of the Court is merited, it seems highly unlikely that it can be accomplished by a slim Democratic majority acting without either broad public support or the backing of friendly justices.
For these reasons, President Biden’s bipartisan commission is a wise first step, both because it could offer substantive advice and because it might help reframe the issue, changing the narrative away from talking about “court packing” for strictly political ends and toward thinking about “judicial reform” in the context of our constitutional order.