Court packing is bad because it trades an independent judiciary for a political one, and once that trade is made it cannot be undone by a single election. Expanding the Supreme Court to install a favorable majority invites the next party in power to do the same, destroys the public legitimacy that gives the Court’s rulings force, and leaves the law itself swinging with each election. The Constitution never fixed the number of justices, so Congress can change it by ordinary statute, and that structural opening is exactly what makes the idea so dangerous.
What Court Packing Actually Is
Article III creates “one supreme Court” and gives its judges lifetime tenure during “good Behaviour,” but it never says how many justices should sit on the bench.1Constitution Annotated. Supreme Court and Congress The current number, nine, comes from federal statute: one Chief Justice and eight associates, with six forming a quorum.2Office of the Law Revision Counsel. 28 USC 1 – Number of Justices Because that number sits in a statute rather than the Constitution, a simple majority of Congress plus a willing president could change it tomorrow. Court packing is the use of that power for a specific purpose: adding seats so the party in power can fill them with justices who will rule its way.
Congress has altered the Court’s size seven times, and the number has stayed at nine since 1869.3Library of Congress. Legislative Control Over the Size of the Supreme Court That 150-plus-year stability is not an accident. It is the norm that stands between a judicial branch and a political one, and every argument against court packing comes back to what breaking that norm would cost.
It Strips the Court of Independence
Judicial independence means judges decide cases on the law, not on who put them there. The framers built that independence into Article III through the Good Behavior Clause, which gives federal judges their positions for life, removable only through impeachment.4Constitution Annotated. Overview of the Good Behavior Clause A judge who cannot be fired for an unpopular ruling is free to follow the law wherever it leads.
Packing the Court corrodes that protection without touching a word of the Constitution. When a president and Congress add seats for the stated purpose of changing outcomes, they announce that the judiciary answers to the political branches. The new justices arrive under a cloud they cannot escape. Every controversial opinion they join is read as the reason they were appointed in the first place. The Good Behavior Clause can keep them in their seats; it cannot restore the Court’s standing as something other than an extension of whichever coalition expanded it.
It Starts a Cycle That Does Not Stop
This is the most practical reason court packing fails as a strategy, even on its own terms. If one party adds four seats to secure a majority, the opposing party faces overwhelming pressure to do the same when power shifts. The next expansion has to be larger to overcome the last. Within a few cycles the Court could reach 15 justices, then 21, each round more openly partisan than the one before.
The Congressional Research Service has observed that although the Constitution does not expressly prohibit changing the Court’s size, commentators across the political spectrum have questioned whether such proposals are “inconsistent with constitutional norms.”3Library of Congress. Legislative Control Over the Size of the Supreme Court The norm against packing is what has held the number steady since 1869. Norms do not reassemble themselves once broken. A Court whose size shifts with every election stops functioning as a court at all and starts functioning as a third legislative chamber.
It Finishes Off Public Legitimacy
The Supreme Court has no army and no budget power. Its rulings carry force only because the public accepts them as legitimate, including the ones people hate. That acceptance is already thin. Gallup polling from mid-2025 found overall approval of the Court below 40% for the first time in the survey’s history, with a record 64-point gap between Republican and Democratic approval. Only 11% of Democrats approved of the Court’s performance, the lowest figure Gallup has ever recorded for any party group.5Gallup. Record Party Gaps in Job Approval of Supreme Court, Congress
Supporters of expansion argue it would correct a Court that has already lost its neutrality. The mechanics guarantee the opposite result. Adding seats and filling them with ideologically selected justices does not depoliticize anything. It confirms to roughly half the country that the institution now belongs to the other half. Legitimacy, once spent this way, is almost impossible to rebuild.
It Makes the Law Itself Unstable
Courts follow their own prior decisions under the doctrine of stare decisis, Latin for “to stand by things decided.” That principle is what gives the law predictability. Businesses structure deals around existing rules. Individuals plan their lives around established rights. Lawyers advise clients by relying on precedent.6Constitution Annotated. Stare Decisis Doctrine Generally
A packed Court arrives with a mandate to overrule whatever decisions motivated the packing. The Supreme Court already treats stare decisis as a flexible principle, requiring only a “special justification” to depart from precedent.6Constitution Annotated. Stare Decisis Doctrine Generally Combine that flexibility with a Court whose majority flips every time Congress changes hands, and foundational rulings on property, regulation, and individual liberties could reverse every few years. Nobody from a homeowner to a multinational can plan around law that works that way.
The 1937 Warning
The most famous packing attempt came from a president at the height of his power. In February 1937, Franklin Roosevelt proposed the Judicial Procedures Reform Bill, which would have let him appoint one additional justice for every sitting member over 70, potentially adding six seats. He pitched it as an efficiency measure for an overworked, aging bench.
The Senate Judiciary Committee rejected the plan in blunt terms, calling it “an invasion of judicial power such as has never before been attempted in this country” and declaring it “essential to the continuance of our constitutional democracy that the judiciary be completely independent.” Chief Justice Charles Evans Hughes wrote a letter dismantling the workload rationale, pointing out that more justices would create more inefficiency, not less. By July the Senate had shelved the bill for good. The lesson is unusually clean: a popular president with large congressional majorities could not get court packing past his own party.
What Reformers Propose Instead
People who think the Court has become too political but who recognize the costs of packing have moved toward structural reforms that leave the number of seats alone. The most prominent is fixed terms. The Supreme Court Tenure Establishment and Retirement Modernization Act, introduced as H.R. 5566, would impose 18-year terms staggered so that each president appoints exactly two justices per four-year term.7Library of Congress. HR 5566 – Supreme Court Tenure Establishment and Retirement Modernization Act of 2023 Vacancies would become predictable. Justices would lose the incentive to time their retirements for partisan reasons. Appointments would stop depending on who happens to die when.
Term limits raise their own constitutional questions, because Article III’s Good Behavior Clause has historically been read to mean life tenure.4Constitution Annotated. Overview of the Good Behavior Clause Whether any workaround survives a legal challenge is unsettled. What matters for the packing debate is that serious alternatives exist. If the goal is a less politicized Court, there are routes that do not require breaking the norm that has kept the number at nine since 1869.