Is Court Packing Legal? What the Constitution Says

Yes, court packing is legal. The Constitution never fixes the number of Supreme Court justices, and Congress has changed that number seven times since 1789. The current count of nine comes from a federal statute, 28 U.S.C. § 1, and Congress can amend that statute the same way it passes any other law: a bill through both chambers, signed by the president.¹

Why the Constitution Permits It

Article III creates the Supreme Court in a single sentence: “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.”² That is the entire constitutional text on the subject. No number of justices. No quorum rule. No structural requirements. The framers handed those decisions to Congress.

So when people ask whether expanding the Court would require a constitutional amendment, the answer is no. The nine-justice Court exists because 28 U.S.C. § 1 says so: “The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.”¹ Change the statute, change the Court.

How Congress Would Actually Do It

A court-expansion bill follows the same path as any other legislation. The Judiciary Act of 2023, for example, would have amended 28 U.S.C. § 1 by striking “eight associate justices” and inserting “twelve associate justices,” bringing the total to thirteen.³ It needs a simple majority in the House and the Senate, then a presidential signature. A veto can be overridden by a two-thirds vote in both chambers.

The practical obstacle is the Senate filibuster. Most legislation needs 60 votes to end debate before a final vote. The 60-vote threshold is a Senate rule, not a constitutional rule, but it bites hard. The Senate eliminated the filibuster for lower-court nominees in 2013 and for Supreme Court nominees in 2017, but it still applies to legislation.⁴ So a court-expansion bill today faces a higher vote threshold than the confirmation of the justices who would fill the new seats. Legal, yes. Easy, no.

Congress Has Already Done This Seven Times

The clearest proof that court packing is legal is that it has happened repeatedly. In the Court’s first eighty years, Congress changed its size again and again, usually for a mix of practical and political reasons.⁵

1789 — Six justices. The Judiciary Act of 1789 created a Court of one Chief Justice and five associates.⁵
1801 — Reduced to five. The outgoing Federalist Congress shrank the Court by one seat effective with the next vacancy, aiming to deny incoming President Thomas Jefferson a nomination. The next Congress repealed the law.⁶
1807 — Seven justices. A new seventh circuit covering Kentucky, Ohio, and Tennessee came with a seventh seat.⁷
1837 — Nine justices. President Andrew Jackson signed legislation adding two circuits and two seats.⁷
1863 — Ten justices. A Tenth Circuit for California and Oregon brought a tenth seat during the Civil War.⁸
1866 — Shrinking toward seven. The Judicial Circuits Act authorized a gradual reduction from ten to seven as vacancies arose, with the clear purpose of denying President Andrew Johnson any nominations.⁹
1869 — Nine justices. The Judiciary Act of 1869 set the number at one Chief Justice and eight associates, where it has stayed for over 150 years.⁵

Some of these changes were tied to the growing number of federal circuits each justice had to ride. Others were naked partisan maneuvers. Either way, Congress treated the Court’s size as a lever it was free to pull.

Could the Supreme Court Strike Down Its Own Expansion?

In theory, any federal law can be challenged. In practice, a court-expansion bill would stand on about as solid a constitutional footing as a statute can. Article III explicitly places the structure of the federal courts in Congress’s hands, and Congress has used that authority seven times already. There is no constitutional text the justices could cite to cap the number of seats. And striking down a law adding colleagues to their own bench would create an obvious legitimacy problem for the Court.

No such challenge has ever been tested, because Congress has not expanded the Court since 1869. The barriers to expansion have always been political, not legal.

What FDR’s 1937 Attempt Shows

The most famous expansion attempt failed, but not because it was unconstitutional. After winning reelection in a landslide, President Franklin D. Roosevelt grew frustrated with a Supreme Court that kept striking down New Deal programs. His Judicial Procedures Reform Bill would have let him appoint one additional justice for every sitting justice over age 70, potentially adding six seats.¹⁰

Roosevelt pitched it as an efficiency fix for an overworked, aging bench. Almost nobody believed him. Members of his own party called it an assault on judicial independence, and the Senate killed the bill 70 to 20 in July 1937.¹¹ The lesson is political: expanding the Court is legal, but the political cost can be enormous even for a popular president with his own party in control of Congress.

Current Expansion Proposals

The idea has returned in recent years. The Judiciary Act of 2023, introduced in both chambers, would have added four seats to bring the Court to thirteen.³ Supporters noted that the Court was originally sized to match the number of federal circuit courts, and there are now thirteen circuits. The bill was referred to the House Judiciary Committee and never received a vote. A similar 2021 version went nowhere. Neither had the support needed to clear the Senate filibuster.

In 2021, President Biden also established a Presidential Commission on the Supreme Court to study reform options. Its final report, issued that December, did not recommend major changes, and no reforms resulted.

Term Limits Raise a Different Legal Question

Not every Supreme Court reform proposal involves adding seats, and the legality analysis changes when you move to a different mechanism. The Supreme Court Tenure Establishment and Retirement Modernization (TERM) Act would give each justice 18 years of active service before shifting them to “senior status,” where they would still hold the office and draw full pay but no longer occupy one of the nine active seats.¹²

The constitutional problem here is real. Article III says federal judges “shall hold their Offices during good Behaviour,” which most legal scholars read as guaranteeing life tenure. Supporters argue the senior-status mechanism preserves life tenure because the justice still holds the office. Critics, including the Congressional Research Service, have noted that most commentators believe Congress cannot impose a term limit without a constitutional amendment. If a term-limit law ever passes, the Supreme Court would decide for itself whether it stands. That uncertainty does not apply to a straightforward expansion bill, which has clear constitutional grounding and over two centuries of precedent behind it.

1
Office of the Law Revision Counsel. 28 USC 1 – Number of Justices; Quorum
2
Congress.gov. Constitution of the United States – Article III
3
Congress.gov. Text – HR 3422 – 118th Congress (2023-2024) Judiciary Act of 2023
4
U.S. Senate. About Filibusters and Cloture
5
Supreme Court of the United States. The Court as an Institution
6
U.S. Capitol Visitor Center. Judiciary Act
7
Library of Congress. The Size of the United States Supreme Court
8
Federal Judicial Center. Landmark Legislation – Tenth Circuit
9
govinfo. 14 Stat 209 – An Act to Fix the Number of Judges of the Supreme Court of the United States, and to Change Certain Judicial Circuits
10
Constitution Center. How FDR Lost His Brief War on the Supreme Court
11
Federal Judicial Center. FDR’s Court-Packing Plan
12
Congressman Hank Johnson. Rep Johnson Re-Introduces Supreme Court Justice Term Limit Measure to Restore Balance, Legitimacy for SCOTUS