Debate Desk
Should Congress Expand the Supreme Court to Add More Justices?
The Court has had nine justices since 1869; a plan to add seats whenever a party loses a ruling would end its independence, as FDR's 1937 failed plan showed.
The claim
Proponents say that the Constitution does not set the size of the Court, that Congress has changed it before, and that adding justices is a legitimate way to correct a Court that they believe has become too partisan or whose members were confirmed in questionable circumstances.
The answer in three points
- The Constitution does leave the number to Congress, and the number has stayed at nine since 1869. A century and a half of stability is itself a tradition. A change made for the sake of reversing outcomes would be a break with it.
- The logic has no end. If one party adds seats when it controls Congress, the other will add its own when it returns to power. The Court would grow with every swing of the pendulum and lose the trust that gives its rulings force. Even in 1937, a Senate controlled by the president's own party rejected Franklin Roosevelt's plan to add justices.
- Courts are supposed to be a check on the political branches. A court whose size can be changed by majority vote has no independence. If the concern is the quality of the Court, the remedy is to choose and confirm better justices, and to win elections.
A reform that would be welcome if your side were in power and feared if the other were is probably a bad reform.
The numbers
- The Judiciary Act of 1869 set the number of Supreme Court justices at nine, according to the Supreme Court's historical records.
- President Franklin Roosevelt proposed in February 1937 to add up to six justices, and the Senate Judiciary Committee rejected the plan, according to the Senate's historical office.
- Article III of the Constitution vests the judicial power in one Supreme Court and in inferior courts that Congress may establish, and does not fix the number of justices.
What they will say next
"Congress changed the number before." It did, in the nineteenth century, from six to as many as ten, usually for administrative reasons connected to circuits. None was done to alter the outcome of cases, and the last change was 1869.
"The Court has gone too far." Disagreement with a ruling is a ground to argue, to legislate where possible, to amend the Constitution or to win elections. It is not a ground to change the referee.
"Other countries have different sizes." They do, and their courts operate under different systems. The lesson of experience is that packing invites retaliation.
"The confirmation process was unfair." Both parties have complained about it. Reform can be considered on a bipartisan basis.
A court that is above politics must be protected from politics.
"Judges decide cases on politics anyway." Many court watchers disagree, noting the frequent unanimous or cross-ideological votes. A court that is seen as political loses its authority, and enlarging it would make that worse.