Supreme Court Packing Bills

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SUPREME COURT PACKING BILLS are congressional measures designed to alter the composition and also the direction of the Supreme Court of the United States. By changing the number of justices, the Supreme Court majority that decides cases is altered, and thus "packed" for one side or another of a case. The Constitution does not fix the number of Supreme Court justices, and under Article III, Section 2, Congress has the authority to alter the number of justices on the Court.

The seminal Judiciary Act of 1789 fixed the number of justices at six. Since 1789, Congress has increased the number from time to time for a variety of reasons, including increasing efficiency and decreasing the justices' workload. Congress has also altered the number of justices to produce desired results in Supreme Court cases. Congress changed the number of justices from six to five in 1801 during the contentious and politicized prelude to the presidential transition from John Adams to Thomas Jefferson. The Judiciary Act of 1801 was an attempt to pack the courts, including the Supreme Court, with Federalist judges after Adams's party lost the executive and legislative branch to Jefferson's Democratic-Republicans in the 1800 election. The act, passed by the Federalist controlled lame duck Congress, created fifty-eight new judgeships and prevented incoming Democratic President Thomas Jefferson from presidential court packing by reducing the number of Supreme Court justices from six to five. In 1802, Congress, controlled by Jefferson's allies, repealed the Act of 1801, again bringing the number of justices back to six.

During post–Civil War Reconstruction, Congress changed the number of Supreme Court justices to preserve the Reconstruction program favored by the dominant

Radical Republicans in Congress. In 1866, Congress reduced the number of justices from ten (which had been the number determined by Congress just three years earlier in 1863) to six to prevent President Andrew Johnson from presidential packing of the Court by appointing new justices who might overrule the congressionally approved Reconstruction program. Congress again increased the number to nine in 1869, once Johnson, who barely survived impeachment, was out of office. Since 1869, the number of Supreme Court justices has remained constant at nine.

Attempts to pack the Supreme Court, however, have come from presidents as well as from Congress. Presidential court packing is seen as part of the presidential appointment of Supreme Court justices and still occurs today. In choosing an appointee, the president will consider the potential appointee's legal philosophy and interpretive ideology, as well as personal political party affiliation. The presidential packing powers, however, are limited by the opportunity to appoint a new justice during the president's term (a function of the retirement or death of sitting justices) and senatorial advice of and consent to the president's appointee of choice.

The most recognized court-packing bill is President Franklin Delano Roosevelt's (FDR) proposal of 1937. When various aspects of Roosevelt's New Deal legislation found their way to the Supreme Court, four conservative justices (who came to be known derisively as the "Four Horseman") solidly opposed FDR's attempt to expand the scope and power of the federal government, particularly over the depressed American economy. Two justices, Chief Justice Charles Evans Hughes and Justice Owen J. Roberts, were swing votes and tended to vote with those who opposed the New Deal legislation. The result was that the Court struck down eight out of ten major programs proposed by FDR, many by narrow majorities.

In February 1937, FDR announced his proposal to alter the composition of the judiciary, citing inefficiency and backlogged dockets as the reasons necessitating the change. The proposal would have impacted the American federal judicial system from top to bottom, but its primary goal was to pack the Supreme Court with justices he would appoint. His plan would have authorized the president to replace every judge or justice who had served more than ten years or had failed to retire within six months after reaching seventy years of age. At the time, the proposal would have authorized FDR to appoint as many as six new justices to the Supreme Court.

The proposal, the subject of tense debates, never made it out of committee, and Congress as a whole never voted on it. FDR and congressional New Deal supporters, however, still received their desired result. With the two 1937 cases of West Coast Hotel v. Parrish and National Labor Relations Board v. Jones & McLaughlin Steel Corporation, Justice Roberts changed his voting tendencies and began voting in favor of upholding sweeping New Deal legislation. Roberts denied that his "switch" was influenced by FDR's court packing proposal. There are many other viable explanations, but the saying "the switch in time that saved nine" emerged as the characterization of the Court packing events of 1937. The Court's new willingness to support President Roosevelt's favored legislation took the wind out of the sails of his court-packing plan.

Congress's attempts to pack the court have had more effect on the Supreme Court than presidential packing. Court packing bills have been designed to result in congressional control of the Supreme Court, which provides the largest check on congressional legislation and action. Congressional control of the Supreme Court disrupts the balance of powers and the system of checks and balances revered as fundamental to the system of government in the United States. The unsuccessful attempt by FDR and his Democratic allies in Congress to pack the Supreme Court was the last major concerted attempt by a president and Congress to alter the number of justices on the Supreme Court and thus change the direction of American law and life.


Abraham, Henry J. The Judiciary: The Supreme Court in the Governmental Process. 10th ed. New York: New York University Press, 1996.

Leuchtenburg, William E. The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt. New York: Oxford University Press, 1995.

Rehnquist, William H. The Supreme Court. New York: Knopf, 2001.

Jacob E.Cooke, Akiba J.Covitz,
Esa LianneSferra, Meredith L.Stewart

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Supreme Court Packing Bills

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Supreme Court Packing Bills