Court packing is the practice of adding new seats to a court — most often the U.S. Supreme Court — so that the party in power can fill those seats with ideologically friendly judges and shift the court’s balance. It is legal. The Constitution never fixes the number of justices, so Congress can change the size of the Supreme Court by passing an ordinary federal statute, the same way it passes any other law.
What Court Packing Means in Practice
Court packing is not the normal appointment process. When a justice dies or retires, the president nominates a successor and the Senate confirms or rejects that nominee. That’s the system the Constitution lays out. Court packing bypasses the waiting game entirely by persuading Congress to create brand-new seats that didn’t exist before, then filling all of them at once.
The goal is arithmetic. If a nine-member court splits 6–3 against the governing party’s agenda, adding four seats and filling them produces a 7–6 majority without a single existing justice changing a vote or leaving the bench. Supporters frame it as a legitimate response to a court that has drifted out of step with the country. Opponents call it a power grab that treats judicial independence as expendable.
The term has stretched in recent years. After Senate Republicans refused to hold hearings on Judge Merrick Garland’s 2016 nomination, some commentators began using “court unpacking” to describe confirmation blockades, arguing that controlling the bench through delay is functionally the same thing. The classic definition, though, still refers to expanding a court’s size through legislation.
Why Court Packing Is Legal
Article III, Section 1 of the Constitution vests federal judicial power in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”1Congress.gov. ArtIII.S1.8.3 Supreme Court and Congress That sentence is close to everything the Constitution says about the Court’s structure. No number of justices. No internal operating rules. No fixed membership.
Because the Constitution leaves the number blank, the size of the Supreme Court is set by statute. The current figure of nine lives at 28 U.S.C. § 1, which states that the Court “shall consist of a Chief Justice of the United States and eight associate justices.”2Office of the Law Revision Counsel. 28 USC 1 – Number of Justices; Quorum That statute carries no more constitutional weight than any other federal law. A future Congress can change it by passing a new bill through both chambers and sending it to the president, no amendment required.3Administrative Office of the U.S. Courts. About the Supreme Court
Congress also has related structural powers under Article III. The Exceptions Clause in Section 2 lets Congress make “Exceptions” and “Regulations” to the Court’s appellate jurisdiction, which means legislators have more than one lever for reshaping the Court’s role.4Constitution Annotated. Exceptions Clause and Congressional Control Over Appellate Jurisdiction Adjusting the number of seats is just the most direct one.
How the Court’s Size Has Already Changed
The number nine feels fixed, but it is not. Congress has changed the Supreme Court’s size at least seven times, and most of those changes were driven by politics rather than caseload.
- 1789: The original Judiciary Act set the Court at six — one Chief Justice and five associates.
- 1801: A lame-duck Federalist Congress reduced the Court to five to deny incoming President Thomas Jefferson an appointment.
- 1802: Jefferson’s allies repealed the 1801 act and restored the Court to six.
- 1807: Congress added a seventh seat alongside a new federal circuit.
- 1837: President Andrew Jackson gained two additional seats when Congress expanded the circuit system, bringing the Court to nine.
- 1863: Congress created a tenth seat during the Civil War, giving President Lincoln a friendlier bench on wartime questions.
- 1866: The Reconstruction Congress shrank the Court through attrition to prevent President Andrew Johnson from making appointments.
- 1869: A new Judiciary Act set the number at nine, where it has stayed for more than 150 years.
The pattern is unmistakable. Presidents and congresses added seats to install allies, and removed seats to block rivals. The current count is the longest-running configuration, but it is not the original and not constitutionally mandated.5Supreme Court of the United States. The Court as an Institution
The FDR Precedent
The phrase “court packing” entered the national vocabulary in 1937. President Franklin D. Roosevelt had just won re-election in a landslide, but the Supreme Court’s conservative majority kept striking down his New Deal programs. In February 1937, his administration introduced the Judicial Procedures Reform Bill, which would have let the president appoint one additional justice for every sitting justice over age 70 who had not retired.6Federal Judicial Center. FDR’s “Court-Packing” Plan Six justices met that threshold, so the Court could have grown to fifteen.
The backlash was bipartisan. The Senate Judiciary Committee issued a report calling the proposal “an invasion of judicial power such as has never before been attempted in this country.” The bill died in the Senate that summer.
Meanwhile, the Court itself moved. In March 1937, Justice Owen Roberts voted with the liberal bloc in West Coast Hotel v. Parrish to uphold a state minimum wage law. The press called it “the switch in time that saved nine.” Whether Roberts actually shifted in response to the political threat remains debated, but the Court’s broader turn toward upholding economic regulation drained the urgency from Roosevelt’s plan. He lost on court packing and still got the constitutional outcomes he wanted on the New Deal.
Why Court Packing Is Being Debated Again
The idea came back after a series of contentious confirmations reshaped the Court. Senate Republicans blocked Merrick Garland’s nomination in 2016. Three justices were then confirmed during the Trump presidency, producing a 6–3 conservative majority. In response, congressional Democrats introduced the Judiciary Act of 2021, which proposed expanding the Court from nine to thirteen — matching the number of federal circuit courts of appeals.7U.S. Representative Hank Johnson. Expand the Supreme Court The bill never advanced, but it moved expansion from the political fringe into mainstream debate.
Supporters argue the Court has drifted out of alignment with the electorate. They note that since 1988, Republican and Democratic presidential candidates have won the White House an equal number of times, yet Republican appointees hold six of the nine seats. They also point out that the historical practice of tying the Court’s size to the number of federal circuits would, if restored, produce a thirteen-member bench today.
Opponents call it a one-way ratchet. If one party expands the Court when it holds power, the other party will expand it further the next time control flips. The result, they argue, would be a bench that keeps growing with every change of government, with no stable composition and no credible claim to independence. Critics also warn that a court cannot check elected officials who can rewrite its membership whenever they dislike its rulings.
What It Would Take to Pack the Court Today
Mechanically, changing the Court’s size is a standard legislative act. A member of Congress introduces a bill proposing a new number. The bill moves through committee, debate, and a vote in each chamber. A simple majority — 218 in the House, 51 in the Senate — passes it, and the president signs it into law.8house.gov. The Legislative Process9USAGov. How Laws Are Made If the president vetoes, Congress needs two-thirds of each chamber to override.10Legal Information Institute. U.S. Constitution Annotated Article 1 Section 7 Clause 2 – The Veto Power
The real barrier is the Senate filibuster. Most legislation requires 60 votes to end debate before a final vote can happen. Even a party that controls the White House, House, and Senate would need either 60 senators willing to expand the Court or the votes to eliminate the filibuster for this kind of bill. The filibuster has already been removed for Supreme Court confirmations, but it still applies to the underlying legislation that would create the new seats.
Once a new seat exists, filling it is routine. The president nominates, and a simple majority of 51 senators confirms.
Other Reform Options
Expansion is not the only structural reform under discussion. Term limits are the most prominent alternative. The Supreme Court Term Limits and Regular Appointments Act, introduced in the 117th Congress, proposed 18-year staggered terms, giving each president two appointments per four-year term on a predictable schedule.11Congress.gov. Supreme Court Term Limits and Regular Appointments Act Supporters argue this would lower the stakes of any single vacancy. Critics question whether term limits can be enacted by statute at all, since Article III guarantees federal judges hold their offices “during good Behaviour,” language that has long been read to mean life tenure.
Jurisdiction stripping is another option. Under the Exceptions Clause, Congress can remove certain categories of cases from the Supreme Court’s appellate docket without touching its membership.4Constitution Annotated. Exceptions Clause and Congressional Control Over Appellate Jurisdiction The constitutional limits of that power remain contested, and Congress has rarely tested them.
Each alternative carries its own political and legal risks, which is part of why none has moved. Court packing stays on the table because it is the bluntest tool — and the bluntness is both what makes it attractive to a frustrated majority and what makes it alarming to the people worried about where the practice ends.