The election-year confirmation of Justice Amy Coney Barrett, in the wake of the Senate's inaction on the 2016 nomination of Judge Merrick Garland, has triggered widespread speculation that the next Congress and President, if Democratic, may seek to add justices to the U.S. Supreme Court. One end of the political spectrum views that prospect as improper “court packing,” while the other end considers it a reasonable response to hypocrisy. Whatever one's perspective, we could witness an effort to add seats to the court.
They can't do that . . . can they?
Sure they can. The number of Supreme Court justices is not set by the Constitution. So a change in the court's complement does not require a constitutional amendment. The Constitution says, in Article III, Section 1, only that “[t]he 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.” It then says that jurists “shall hold their Offices during good Behaviour” and be paid a non-diminishing salary for their work. But our governing charter does not specify how many justices are to sit on the high court.
Since the Constitution does not specify the number of justices, that leaves the issue to legislation passed by Congress. Put otherwise, adding and subtracting judicial seats is a power in the legislative quiver. It is one “check” the legislative branch has on the judiciary in our system of separated powers. Congress “commands the purse,” as Alexander Hamilton put it in Federalist 78, and thus it pays for every judge's salary. Since the legislature pays the tab, it makes sense that it also gets to decide how many judges we have. So while adding jurists is sometimes described as an attack on our separation of powers, our design of government contemplates that Congress may add or subtract judges on our federal courts.
And, from time to time, the legislature has done so. Congress' first enactment specifying the number of justices was the Judiciary Act of 1789. It specified “a chief justice and five associate justices, any four of whom shall be a quorum.” This complement of 6 justices corresponded with the number of seats assigned to the justices on the 3 regional circuit courts, which functioned as trial courts. Those courts sat in panels of 3 judges: 2 Supreme Court justices and 1 local district judge. This setup meant regular state-to-state travel for the justices, a tiring practice known as “circuit riding” that Congress did not finally end until 1911.
Congress first changed the Supreme Court's complement in 1801, when President John Adams signed the Judiciary Act of 1801 just before leaving office. That enactment reduced the size of the court from 6 to 5 members upon its next vacancy, reorganized the circuit courts, and added a slew of judicial seats - which Adams immediately tried to fill. Some saw that act as an attempt by Adams and the outgoing Federalist majority in Congress to pack the courts with Federalist judges. This “midnight judges” episode led the next Congress (now with a Democratic-Republican majority) to enact, and new President Thomas Jefferson to sign, the Judiciary Act of 1802. That legislation reverted the court back to 6 members to match the updated 6 circuit courts the enactment specified.
As the 19th century unfolded, Congress engaged in a pattern of adding justices as it added judicial circuits during the nation's westward expansion. The legislature added a 7th justice by the Seventh Circuit Act of 1807. It added 8th and 9th justices by the Eighth and Ninth Circuits Act of 1837. And Congress added a 10th justice by the Tenth Circuit Act of 1863.
After the Civil War, two forces caused Congress to shrink the court. First, the Republican-controlled Congress wanted to prevent President Andrew Johnson from appointing any Southerners to the court. Second, Chief Justice Salmon Chase, working behind the scenes, was trying to convince Congress to raise the justices' pay, and suggested trading a raise for a reduction in the court's size. These factors led the legislature to pass the Judicial Circuits Act of 1866, which cut the court's complement from 10 to 7 as vacancies occurred. This change was short-lived, however. A few years later, Congress passed the Judiciary Act of 1869. That enactment specified a 9-justice court to match the 9 judicial circuits laid out in the 1866 enactment. Congress has not changed the number of justices since the 1869 act.
In sum, over time, Congress has enacted statutes adding and subtracting Supreme Court justices. Those legislative acts have specified a Supreme Court consisting of 5, 6, 7, 9, and 10 justices. The legislature's changes have been for different reasons, some of which were decidedly political - and unrelated to the needs of the judicial system or best interests of the American public.
Given this history, why is it that so many of us think the requirement of a 9-member Supreme Court is carved in stone?
Surely it has something to do with the fact that the number has not changed for 150 years. Nobody alive has known a different number of justices. It may also relate to President Franklin Roosevelt's attempt to expand the court in 1937. After his landslide re-election the year before, FDR announced a bold plan to expand the court to as many as 15 justices - an increase in the court's complement of up to 66%. Most saw this as an effort to “pack” the court with New Deal supporters. It went over like a lead balloon in Congress, which refused to move the measure. Roosevelt had overplayed his hand. The issue ultimately was rendered moot when the court started upholding New Deal enactments and justices retired. But ever since FDR's gambit, we have taught our children that FDR's “court packing” plan was perhaps his biggest mistake.
It thus appears that a combination of stasis and historical folly have baked a 9-member court into the current American consciousness. But nothing stops Congress from passing, and the President from signing into law, an enactment adding or subtracting justices at any time. This has happened in recent years at the state court level - and for political reasons, rather than to serve systemic or public ends. For instance, in 2016, Arizona's legislature expanded its high court from 5 to 7 justices. The same year, the Georgia legislature increased its supreme court from 7 to 9 jurists. And in 2011, Montana's legislature considered a proposal to reduce the size of its supreme court from 7 to 5 members. So while there has been no recent change in the complement of our nation's highest court, the same is not true on the state level.
None of this is meant to suggest that a future Congress and President should - or should not - change the number of justices. Political considerations are outside the scope of this article. But if the legislative and executive branches decide to add seats to the court, it is certainly possible that a future Congress and President could add yet more seats. Adding justices to the Supreme Court might become a regular occurrence. A 9-member court may become a distant memory. What repeated expansion of the Supreme Court for political reasons might mean for public confidence in the judiciary is anyone's guess. But the simple reality is that our plan of government allows the elected branches to do it.
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