Court Packing Explained: Can Congress Change the Size of the Supreme Court?

Court packing explained, in plain English: “court packing” is the practice of changing the number of seats on the Supreme Court in order to change its outcomes. It is not unconstitutional, and it does not require an amendment. The Constitution never says how many justices there should be — Congress sets that number by ordinary statute, and it has changed the number seven times. The reason we have had nine justices since 1869 is custom and political restraint, not law.

That last sentence is the part most people find unsettling, and it should be. Twenty years inside politics taught me that the rules we treat as permanent are usually just habits nobody has yet had the votes and the nerve to break.

What does “court packing” actually mean?

The phrase gets thrown at anything someone dislikes about judicial appointments. Confirming a justice quickly is not court packing. Leaving a seat vacant is not court packing. Court packing has a specific meaning: adding seats to a court so that the appointing president can fill them and shift the balance of decisions.

Article III of the Constitution establishes “one supreme Court” and then goes quiet. It sets no number, no term lengths beyond good behavior, and no internal structure. Everything else — how many justices, how many circuits, when the term begins — comes from Congress.

Why can Congress change the size of the Supreme Court?

Because it always could, and it repeatedly has. The Judiciary Act of 1789 created a Court of six. Congress shrank it to five in 1801, reversed that the next year, went to seven in 1807, to nine in 1837, and to ten in 1863. In 1866 Congress cut it back to seven by refusing to fill vacancies — an undisguised effort to deny President Andrew Johnson any appointments. In 1869, with a new president in office, Congress settled on nine.

Read that sequence again and notice the pattern. Nearly every change tracked the political needs of the moment. The number nine is not sacred arithmetic; it is where the music stopped.

What happened when FDR tried it?

The most famous attempt is also the most instructive. In 1937, fresh off a landslide and furious at a Court that had struck down much of his early New Deal, Franklin Roosevelt proposed letting the president appoint an additional justice for every sitting justice over the age of seventy who declined to retire — potentially expanding the bench to fifteen.

He had enormous majorities in both chambers. He lost anyway. Members of his own party balked, the Senate Judiciary Committee issued a scathing adverse report, and the bill died. What killed it was not a legal obstacle but a political one: enough legislators decided that winning this particular fight was not worth what it would cost the institution. Meanwhile the Court’s own voting shifted, and ordinary retirements eventually handed Roosevelt the bench he wanted. Historians still argue about cause and effect, but the lesson stands — restraint held where law did not.

Court packing explained: what would it take today?

Mechanically, very little. A bill setting the number of justices at eleven or thirteen would need a House majority, a Senate majority, and a presidential signature. The only real procedural barrier is the Senate filibuster, which requires sixty votes to end debate — and the filibuster is itself a Senate rule that a simple majority can change.

So the honest answer to “can they do that?” is yes. The barriers are entirely political: the party-line vote required, the near-certainty that the other side expands the Court again at its next opportunity, and the public’s reaction to a judiciary that visibly changes size with each election. A presidential commission studied the question at length in 2021 and declined to recommend either direction, which tells you something about how genuinely hard the trade-offs are.

Why should anyone outside Washington care?

Because this is the clearest example of a problem that runs through the whole system: a great deal of what keeps American government stable is unwritten. Serious people on both sides have floated expansion when the Court ran against them and defended nine when it ran their way. That is not hypocrisy unique to anyone — it is what happens when a rule has no enforcement mechanism except embarrassment.

There is a case for reform, and it deserves a fair hearing: proposals for fixed eighteen-year terms, staggered appointments, or a constitutional amendment fixing the number would all take the question out of the hands of whoever happens to hold power. There is also a serious case for leaving it alone, which is that a Court whose size is up for grabs stops being a court. What there is not is a reason to pretend the question is settled.

How does the Bull Moose series dramatize this?

Fiction is where you can run the experiment. The Bull Moose series lives in exactly this territory — the gap between what the rules permit and what decent people have so far refused to do. In Tree of Liberty, the fight is not over whether an action is legal. Everyone involved knows it is. The fight is over whether anybody will pay a price for taking it, and who is willing to go first.

If you want the whole machine in one sitting, start with the prequel, The Senate Deception — it is free, and it is where the institutional rot gets its first good look.

Frequently asked questions

Is court packing illegal or unconstitutional? No. The Constitution does not specify the number of Supreme Court justices, so Congress sets it by ordinary statute. Changing the number requires only a House majority, a Senate majority and a presidential signature — the same process as any other law.

How many times has the size of the Supreme Court changed? Seven times. The Court began with six justices in 1789, then moved to five (1801), six (1802), seven (1807), nine (1837), ten (1863) and seven (1866), before Congress settled on nine in 1869, where it has remained ever since.

Why did Franklin Roosevelt’s court-packing plan fail? Politics, not law. Despite large majorities, enough legislators in Roosevelt’s own party concluded the institutional cost was too high. The Senate Judiciary Committee issued an adverse report and the 1937 bill died, though later retirements gave him the appointments anyway.

Want a political thriller you can’t put down? Claim your free copy of The Senate Deception, the award-winning prequel to the Bull Moose series — and join 3,000+ readers who never miss a release.

---

About the author: Michael Fedor is the award-winning author of the Bull Moose political thriller series. Drawing on 20 years inside politics and campaigns, he writes pulse-pounding fiction about power, democracy, and the fragile machinery of the republic.