A Supreme Court of 435 Justices, Where Court-Packing Logic Leads

This post is a thought experiment, a work of satire, so read it as one. Folks, I have a plan for fixing the Supreme Court, and I would like you to hear it all the way through before you decide it is crazy. The plan is simple. Whenever a political party does not like how the Court is ruling, it adds Justices until it does. That is the entire plan. It has a certain elegance. It also has a sequel, and the sequel is the part nobody mentions at the rally.

Let me say plainly what this is. This post is a thought experiment, a work of satire, and a labelled hypothetical. Every number in the imagined escalation below is invented to illustrate a logic, nothing in it is a prediction or a news report, and no real person is quoted. The experiment ends with real history and the real text of the Constitution, and the real history is what matters. But I want you to watch where the logic goes when nobody stops it, because the destination is funnier, and sadder, than the people who start the trip admit.

The first idea: just add a few seats

Begin with the premise that the people who want to expand the Court sincerely believe it is for a good reason. Perhaps they think the Court is out of step with the country, or that a recent confirmation was unfair, or that the bench has grown too narrow in its outlook. Whatever the grievance, the remedy is arithmetic: if the Court is nine, make it thirteen, and if the new seats are filled by the President who proposed the change, the majority flips.

Is that lawful? Here is the first fact that surprises people. The Constitution does not set the number of Justices. Article III says "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The size is left to Congress. The Court has had different sizes in American history, and a statute could change it again. The question is not whether Congress can. The question is what it does to the institution when Congress does it for the sake of an outcome.

So much for step one. Now watch what step two does.

Round by round: the imagined escalation

Here is the hypothetical, in numbered rounds. The numbers are illustrative, chosen to show the pattern and not to forecast anything.

1. Round one. The Court has nine seats. A governing coalition, call it Party A, is unhappy with a run of decisions and passes a law adding four seats, to thirteen. It fills them. The old 5-4 split is now a 9-4 majority for Party A's views.
2. Round two. The next election goes the other way. Party B takes the White House and the Senate. It points out that Party A changed the rules, so there is no principled reason to keep them. It adds six seats, to nineteen. The tally is now 10 to 9 for Party B.
3. Round three. Party A returns. It adds ten, to twenty-nine. Party B's response adds fourteen, to forty-three. Each side now calls the other's appointees illegitimate and its own an overdue correction.
4. Round four. Along the way, someone notices that a bigger Court is easier to flip. Adding seats is cheaper than persuading voters, and each round enlarges the Court by roughly half again. The sequence runs, in our invented example, from 9 to 13, 19, 29, 43, 65, 97, 145, 217, 325 and finally 435.

That last number is not an accident of my arithmetic. It is the number of seats in the House of Representatives, which has had 435 voting members since 1913 apart from a brief temporary addition for two new states. The punchline of the experiment is that the Supreme Court has now become the House, and nobody can tell them apart except by the carpeting.

I did say funnier. Let's see how it works in practice.

A day at the 435-seat Court: the arithmetic of absurdity

Remember, this is satire, so let's do the math with a straight face. The arithmetic is exact, and the premises are invented.

Oral argument. Today each side gets thirty minutes. Suppose each of the 435 Justices is allowed a modest sixty seconds of questions to each lawyer. That is 435 minutes per side, which is 7 hours and 15 minutes. The lawyer's own thirty minutes of argument would be a rounding error inside the Q&A. A lawyer who begins at nine in the morning would finish his questioning, on the first side only, at about 4:15 in the afternoon. A lunch break, I assume, requires its own committee.

Where do they sit? The courtroom in Washington is built for nine. The Court would need a stadium. Fortunately the Court could borrow the House chamber, and the House could then meet in the stadium, and by the end of the exchange nobody would remember which branch lived where.

The conference. After argument the Justices discuss the case and vote. If each Justice speaks for five minutes, a conservative estimate for people who have spent their careers being paid to talk, that is 435 times five, or 2,175 minutes. Divide by sixty: 36.25 hours, for a single case. The Court hears something like sixty cases in a term, so that is 36.25 times 60, or 2,175 hours of conference time. A forty-hour work week gives you 54.4 weeks. The conference alone would last longer than a year, which is longer than the term.

The opinion. A Court of 435 votes on a majority of 218. Under the rules as we know them, a majority opinion needs five votes today and the fight is over who gets to write it. Now imagine a "majority opinion" that has to satisfy 218 colleagues, with 217 colleagues in dissent writing separately. We would be reading the Federalist Papers, but longer.

Then there is the question of quorum. By statute, six Justices make a quorum today. Under a 435-member Court, six is a rounding error, and the Court could decide a case with a handful of Justices while the rest finished lunch. Which six? Whoever happened to be in the room. That is not a court. That is a lottery with robes.

A Court that cannot sit, cannot confer and cannot write is not a court. It is a legislature that has lost the ability to pass anything, and the people who wanted to rule through it will have discovered that the building they wanted to capture no longer has a door.

The steelman: a fair word for the court expanders

Fairness first. The people who favor changing the size of the Court are not fools, and some make a respectable case.

They would say: the number nine is not in the Constitution, so it has no sacred status. Congress changed the size of the Court several times in the nineteenth century, and the Court has done fine. If the Court has lost public trust, or is out of balance, or the confirmation process has become a mess, then a reform is overdue, and since Article III gives Congress the power to set the size, using it is lawful and ordinary.

Everything in that argument is true. And everything in it is beside the point. The question is not whether Congress may. It is whether Congress should, for the reason it would be doing it. A lawful power can be abused, and the test is the one the Founders applied to every power: what happens when the other side gets it? The thought experiment answers. Round two exists. There is always a round two, and the one thing a Court needs to function as a court, public confidence that it applies the law and not a party's preferences, is the thing that does not survive round two.

What history actually says: the 1869 settlement

Now to the real history, with real dates.

The Court began with six Justices under the Judiciary Act of 1789. The number changed as the country grew and as Congress adjusted the system of circuit courts. It rose to seven in 1807, to nine in 1837 and to ten in 1863, then was cut to seven in 1866 in a fight with President Andrew Johnson, partly to deny him appointments. In 1869 Congress passed the Judiciary Act of 1869, which set the number at nine, one Chief Justice and eight Associate Justices, and it has stayed at nine ever since. That is more than a century and a half of stability, and it is not an accident. Our post Nine Justices Since 1869, and Why the Number Should Stay Nine tells how the figure settled, but the fact worth noting is this: the one time before 1937 that Congress changed the size of the Court to deny a President his appointments, it changed it back within a few years.

Then, in 1937, came the real test.

1937: the Senate Judiciary Committee says no

On February 5, 1937, President Franklin Roosevelt, fresh from a landslide re-election, proposed legislation that would have allowed him to add a new Justice for each sitting Justice over the age of seventy who did not retire, up to a total of fifteen. The stated reason was the workload of aging judges. The widely understood reason, which was no secret, was that the Court had struck down several New Deal measures and the President wanted a Court that would not.

The plan failed, and it failed in his own party. The Senate Judiciary Committee voted ten to eight in May 1937 to report against it, and its written report, filed on June 14, is one of the great documents of American constitutionalism. The report recommended rejecting the bill as "a needless, futile, and utterly dangerous abandonment of constitutional principle" and urged that it be "so emphatically rejected that its parallel will never again be presented." The wording is in the committee's printed report, so check it there. The substance is not in doubt. The Senate sent the bill back to committee in July 1937 by a wide margin, and it died.

Why did it matter that the plan was beaten in a Senate where the President's own party held a large majority? Because the members understood the logic of round two. They saw that a Court expanded for an outcome would be a Court that every future majority was entitled to expand for its own. The committee argued that the plan would subjugate the courts to the legislative and executive will, and that the remedy for decisions one dislikes is the amendment process the Constitution provides, not a change in the makeup of the bench. They were right about the principle, and history has been kind to them.

What the Constitution protects, and what it does not

Here is the uncomfortable fact for people who say "it's just a statute": Article III protects the judges, not the number of seats. It says judges "shall hold their Offices during good Behaviour" and that their pay "shall not be diminished." Those clauses were written, as the Declaration's grievance about judges "dependent on his Will alone" shows, to stop a political power from controlling the courts by controlling the people on them. Adding seats to dilute the votes of sitting judges is a way of controlling the bench that the text does not forbid by name, and the judgment of two centuries is that it violates the spirit of the clauses even if it satisfies the letter.

That is a conservative argument, and it is one I make with some energy. A rule that protects every Justice's tenure but allows his vote to be drowned is a rule that has been honored in form and defeated in fact. In Federalist 78 Hamilton wrote that the judiciary has neither force nor will, but only judgment, and that its independence is essential to the Constitution's limits on the legislature. Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right? explains the passage. A Court that the legislature can enlarge at will has no independence to be essential.

The thought experiment therefore proves a theory about institutions that goes beyond the Court. Some institutions function only because both sides refuse to use powers they technically have. The filibuster, the size of the Court, the norm that a President accepts the result of an election: all of them are held in place by something other than a statute. Break one for a short-term gain, and you teach your opponents how. This is why the debates in The Nuclear Option of 2013 and 2017, and How Filibusters for Judges Ended and Garland in 2016 and Barrett in 2020, and What Advice and Consent Really Means are fights about more than the immediate result.

The strongest objection, answered point by point

A serious critic says: your slippery slope is a fallacy. Nobody is proposing 435 Justices. A sensible expansion to thirteen, say, with a bipartisan agreement, would be a one-time reform, not the first step in an arms race.

Three answers.

1. A one-time reform is not a thing a majority can promise on behalf of the next majority. The whole problem with the precedent is that it is available to anyone later. The party that proposes it today does not control the party that holds power tomorrow.
2. The motive shapes the remedy. A reform proposed because of particular rulings teaches everyone that the number is a function of the rulings. A reform pursued for workload reasons, say, would have to be adopted with a rule of its own, such as phasing in over years or taking effect only after the next election, so that no one could tell which side it helped. Most proposals I have seen do not include such a rule.
3. The Court already has legitimate ways to change. Justices retire, die and are replaced, and the President nominates with the Senate's consent. That is slower than a statute, and it is slow on purpose. For the argument about fixed terms, see Eighteen-Year Term Limits for Justices Sound Tidy Until You Read Article III. If the country wants a different Court, the lawful and durable way is to win elections and confirm judges.

Put differently: if the plan is a good one, it should survive the rule of reciprocity. Imagine the other party's President doing the identical thing next year. If you would scream, you have your answer.

The case in brief

1. Article III leaves the size of the Court to Congress, but the Court has had nine seats since the Judiciary Act of 1869, and that stability is a source of its authority.
2. Court expansion for a result invites a response; the thought experiment, with invented numbers, runs to a 435-seat Court that cannot sit, confer or write.
3. In 1937 a Democratic-controlled Senate Judiciary Committee rejected President Roosevelt's plan to add Justices, calling it a dangerous abandonment of constitutional principle, and the Senate sent the bill back to committee in July 1937.
4. Some institutions hold only because both sides refuse to use powers they technically have, and the Court's size is one of them.
5. The lawful route to a different Court is the slow one: win elections, nominate, confirm, and, if you want to change the Constitution, amend it under Article V.

What you can do: read Article III in the Constitution's own text, then ask your senators how they would vote on any proposal that changes the size of the Court, and whether they would accept the same rule if the other party proposed it.