Executive Summary

  • For more than 150 years, the United States Supreme Court has consisted of nine members (eight associate justices and one chief justice). 
  • In 1937, President Franklin D. Roosevelt famously attempted to enlarge the size of the Court in order to stack the bench with jurists sympathetic to his legislative agenda. Influential members of Roosevelt’s own Democratic party, however, opposed the plan as a threat to judicial independence. Ultimately, Roosevelt backed down.
  • Sadly, some politicians today seem not to have learned history’s lesson that Court-packing plans undermine the rule of law. 
  • Like Roosevelt, modern-day proponents of Court-packing want to add additional justices to increase the chances that the Court rulings will reflect progressive policy objectives. But the role of the Court is to interpret and apply the law as written, not to support a particular policy agenda. 
  • Adding seats to the Supreme Court to prevent it from over-ruling acts of Congress eliminates the power of judicial review, which provides a critical check on the power of the legislative branch.
  • Threatening to restructure the Court if it does not rule a certain way undermines the separation of powers and the Court’s institutional legitimacy.
  • Practically speaking, packing the Court would result in a judicial arms race, where each party would seek to add justices whenever they are in power. Ultimately, this cycle of one-upmanship would turn the Court into a brazenly partisan and unwieldy organization with dozens, if not hundreds, of members.

Why You Should Care

As Alexander Hamilton wrote in Federalist 78, “[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution.” Packing the courts to achieve desired political or policy outcomes would endanger the legitimacy and independence of the federal judiciary and erode the separation of powers that safeguard our liberty.