Court Packing

What is court packing?

Court packing is adding seats to the Supreme Court in order to install justices who will shift its rulings. The phrase describes the motive, not the mechanics. Supporters call the same act court expansion and argue it answers a Court that no longer reflects the country. Either way, the number of justices is set by ordinary law, so a simple majority in Congress can change it.

The number nine has held for more than 150 years, longer than any other count. That stability is one reason changing it now draws the “packing” label. But the stability is a habit, not a rule.

How Congress Changes the Court’s Size

Article III of the Constitution creates “one supreme Court” and says nothing about how many people sit on it. That silence hands the decision to Congress. The first Congress set the number at six in the Judiciary Act of 1789, and every change since has come the same way, through a bill that passes both chambers and gets signed.

Resizing the Court takes a simple majority, the same threshold as naming a post office. There is no supermajority requirement, no state ratification, no amendment. That is why expansion is legally straightforward even when it is politically explosive.

Term limits are different. Many legal scholars argue that capping a justice’s tenure would require a constitutional amendment because Article III grants judges their seats “during good Behaviour,” which courts have read as life tenure. Others say an 18-year term could be written so a justice keeps a federal judgeship after rotating off the high court. That dispute is why term limits, despite broad popularity, are harder to enact than a number change.

Seven Times Congress Resized the Court

Congress changed the number of justices seven times before locking it at nine. The count climbed for new circuits, dropped to deny a president appointments, and twice moved for raw political advantage. It grew from six in 1789 to seven in 1807, to nine in 1837, to ten in 1863, was set to shrink to seven in 1866 to block Andrew Johnson, then settled at nine in 1869.

1. 1789 Set at six justices The Judiciary Act of 1789 builds the first federal courts and seats six justices.
2. 1801 Cut to five justices Lame-duck Federalists shrink the Court to deny Jefferson an appointment. It took effect only at the next vacancy.
3. 1802 Restored to six justices Jefferson's Congress repeals the cut before any seat opened, so the bench never actually shrank.
4. 1807 Up to seven justices A seventh circuit covering Kentucky, Tennessee, and Ohio adds a seventh justice.
5. 1837 Up to nine justices Two new western circuits under Andrew Jackson push the Court to nine.
6. 1863 Up to ten justices A tenth Civil War circuit adds a tenth justice as the Union fights the war.
7. 1866 Set to shrink to seven Reconstruction Republicans bar new seats to keep Andrew Johnson from filling them.
8. 1869 Fixed at nine justices The Judiciary Act of 1869 settles the number at nine. It has not changed since.

Sources: Brennan Center, Federal Judicial Center, Constitution Annotated.

Justices on the Supreme Court, 1789-1869: 1789 — Set at six justices (The Judiciary Act of 1789 builds the first federal courts and seats six justices.). 1801 — Cut to five justices (Lame-duck Federalists shrink the Court to deny Jefferson an appointment. It took effect only at the next vacancy.). 1802 — Restored to six justices (Jefferson's Congress repeals the cut before any seat opened, so the bench never actually shrank.). 1807 — Up to seven justices (A seventh circuit covering Kentucky, Tennessee, and Ohio adds a seventh justice.). 1837 — Up to nine justices (Two new western circuits under Andrew Jackson push the Court to nine.). 1863 — Up to ten justices (A tenth Civil War circuit adds a tenth justice as the Union fights the war.). 1866 — Set to shrink to seven (Reconstruction Republicans bar new seats to keep Andrew Johnson from filling them.). 1869 — Fixed at nine justices (The Judiciary Act of 1869 settles the number at nine. It has not changed since.).

1789: The Judiciary Act of 1789 created the federal court system and set the Supreme Court at six justices, two for each of the three original circuits.

1801 and 1802: Federalists who lost the 1800 election passed a lame-duck law shrinking the Court to five, timed to take effect at the next vacancy so President Jefferson could not appoint anyone. Jefferson’s new majority repealed the law in 1802 before any seat opened. The bench never actually fell to five, which is why some historians count six size changes and others count eight.

1807: Congress added a seventh circuit for Kentucky, Tennessee, and Ohio and a seventh justice to ride it. Justices in this era did double duty, hearing cases on the road in addition to sitting in Washington.

1837: Two new circuits covering the expanding West brought the Court to nine under President Andrew Jackson, who got to fill the new seats.

1863: A tenth circuit on the West Coast added a tenth justice during the Civil War, helping ensure the Court would not block the Union war effort.

1866: Reconstruction Republicans, at odds with President Andrew Johnson, passed a law shrinking the Court by attrition so Johnson could not fill any vacancies. The number was on its way down to seven.

1869: With Johnson gone, the Judiciary Act of 1869 set the Court at nine, one justice per circuit at the time. That number has held for more than 150 years.

FDR’s 1937 Plan Failed in His Own Party

The last serious push to enlarge the Court came from Franklin Roosevelt, and it collapsed. After the Court struck down several New Deal laws, Roosevelt unveiled the Judicial Procedures Reform Bill on February 5, 1937. It would have let him appoint one new justice for every sitting justice over age 70 and a half, up to six new seats, which could have grown the Court to fifteen.

Roosevelt framed it as efficiency for an overworked bench. Critics across both parties saw a power grab. The Senate Judiciary Committee, controlled by his own Democrats, buried the bill and called it a “needless, futile and utterly dangerous abandonment of constitutional principle.” The plan lost steam entirely when the Court began upholding New Deal laws that spring, a shift sometimes called “the switch in time that saved nine.”

The episode is why “did FDR pack the Court” gets a clean answer. He tried in 1937 and failed. The attempt is the cautionary tale both sides cite today, and it is the reason the number nine carries so much weight.

Court Expansion Bills in 2025-2026

No bill to enlarge the Court is moving through the current Congress. The most prominent recent proposal, the Judiciary Act of 2023, would have expanded the Court to thirteen, one justice per federal circuit. Sponsored by Senators Ed Markey and Elizabeth Warren and Representatives Hank Johnson and Jerrold Nadler, it was introduced in May 2023, never got a vote, and died when the 118th Congress ended. It has not been reintroduced in the Republican-controlled House.

President Biden proposed a different package in July 2024, built on 18-year term limits and a binding ethics code rather than more seats. That plan ended when he left office in January 2025. Going the other direction, Senators Ted Cruz and Shelley Moore Capito introduced a constitutional amendment in February 2025 to lock the Court at nine. It has not advanced either.

The loudest 2026 voice for expansion is not a legislator. Democratic strategist James Carville argued on his April 2026 podcast that if Democrats win the presidency and both chambers, they should add D.C. and Puerto Rico as states and expand the Court to thirteen, and do it without campaigning on it first. There is no bill behind the comment. Our brief on adding D.C. and Puerto Rico and expanding the Court to 13 lays out what each side argues.

The structural reforms with the most legislative life are the smaller ones. The TERM Act would set 18-year terms and drew more than 60 House cosponsors before stalling. The Supreme Court Ethics, Recusal, and Transparency Act would impose a binding ethics code and passed House Judiciary in committee but never reached the floor. State courts are where most of the action sits, and our brief on the 32 states electing supreme court justices in 2026 shows where those fights are live.

Five Ways to Change the Supreme Court

Expansion is one item on a longer menu, and the options differ sharply on how hard they are to pass and what they risk. Some need only a statute. Term limits may need a constitutional amendment. The table below lays out the main proposals, whether each likely needs an amendment, the case made for it, and the chief objection.

The split that matters is between size and structure. Adding seats changes who is on the Court today. Term limits and an ethics code change how the Court works for every future president, which is why they draw support across party lines while expansion does not.

What the Polling Shows on Court Reform

The public is not evenly split on these reforms. Term limits draw support from large majorities in both parties and have for years. Expansion polls lower, splits along party lines, and has lost ground since 2023.

Term limits clear a majority in both parties. Expansion clears only one. That cross-party gap is why reformers treat term limits as the more durable fix.

Term limits draw majority support across the spectrum

Category	Value
Democrats: 78%	78%
Independents: 61%	61%
Republicans: 56%	56%

Support for 18-year Supreme Court term limits by party, 2026 (Strength in Numbers / Verasight). Court expansion drew about 39% overall the same year, far less among Republicans.

Expansion ran at 54 percent in late 2023 and fell to 39% by early 2026, with Democrats far more supportive than Republicans. The reform with real cross-party backing is the one that changes the rules for everyone, not the one that changes who sits on the bench right now.

Not Every Court Reform Is Court Packing

The phrase “court packing” gets stretched to cover any change to the Court, which muddies the debate. The proposals differ in what they do and in how the law treats them.

• Adding seats is not the same as term limits. Expansion changes the head count by statute. Term limits change how long a justice serves and may require a constitutional amendment. They are different tools with different bars to clear.
• An ethics code is not packing at all. Binding recusal and gift rules change how justices behave, not who they are or how many sit. This is the reform with the broadest support and the lowest constitutional hurdle.
• Resizing the Court is not unconstitutional. Congress has done it seven times. The Constitution sets no number. Calling expansion illegal is wrong, even if calling it unwise is a fair argument.
• Thirteen is a proposal, not a requirement. The “one justice per circuit” math lands on thirteen because there are thirteen federal circuits, but that is an argument advocates make, not a constitutional rule. Congress could pick any number.
• The motive is what earns the “packing” label. Adding seats to relieve a genuine caseload is expansion. Adding seats to flip the next set of rulings is what critics mean by packing. The act can be the same. The reason is the dividing line.

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Frequently asked questions

Is court packing constitutional? Yes. The Constitution does not fix the number of justices, so Congress can change it by ordinary law. Whether expansion is wise is a separate, contested question, but its legality is not in serious doubt (Brookings).

Would expanding the Court need a constitutional amendment? No. A simple statute signed by the president is enough, the same way every past size change happened. The reform that may need an amendment is term limits, because of the “good Behaviour” tenure clause in Article III.

Why are there nine justices? Nine is not in the Constitution. The Judiciary Act of 1869 set the number at nine, then one justice per federal circuit, and Congress has left it alone since. The figure has held longer than any earlier count, which is part of why changing it feels so consequential.

What happens if one party expands the Court? The leading objection is a retaliation spiral. If one party adds seats while in power, the other can do the same when it returns, ratcheting the Court larger each cycle and, critics argue, draining its authority. Supporters counter that the Court’s legitimacy is already strained and that expansion responds to a blocked 2016 nomination and a fast-tracked 2020 confirmation.

What you can do

1. Tell your senators and representative which reform you back, by name. Use the reform menu to be specific. The TERM Act sets 18-year term limits and the Supreme Court Ethics, Recusal, and Transparency Act creates a binding ethics code. Both have bipartisan logic and a lower constitutional hurdle than expansion.

2. Ask your members of Congress whether they support a binding ethics code. After the Thomas and Alito gift disclosures, the justices adopted a code with no enforcement mechanism. A statute would change that. Call your representative and ask for a yes or no on the SCERT Act.

3. Vote in state supreme court elections. In 2026, voters in 32 states are filling supreme court seats that decide redistricting, abortion access, and voting rules. These races are low-turnout and high-impact, and they shape the courts closest to your daily life.

4. Track the expansion debate at the source. The Brennan Center’s reform analysis and the 2021 presidential commission report lay out the full menu without the spin. Read the case for and against adding states and expanding the Court to 13 before you decide where you stand.