Idea of changing the number of Supreme Court justices is hardly new

Recent talk about the idea of expanding the Supreme Court after mid-term elections has resurfaced an old debate about the separation of powers under the Constitution.

On May 21, 2026, a House Judiciary subcommittee heard testimony from four witnesses about “Court Packing: A Threat to the Supreme Court's Legitimacy.” The hearing came after several high-profile opinion pieces debated the idea of adding more members to the Supreme Court bench for various reasons.

During the House hearing, Rep. Jamie Raskin (D- Md,) offered one rationale for the change. “There are 13 federal circuits in America, and traditionally, the Supreme Court has been made up of the number of justices equal to the number of circuits. And we got 13 circuits, but we only have nine justices,” he told the committee. He also pointed to the failed nomination of Merrick Garland and other successful confirmation of Amy Coney Barrett as politicizing the Court nomination process.

On May 31, 2026, the editorial board of The Wall Street Journal disagreed with Raskin. “It’s true the justices once spent part of each year traveling a judicial circuit to hear cases, but this practice of ‘riding circuit’ effectively ended in 1891,” it commented. “Democrats are telling the public they are plotting one of American history’s most destabilizing power grabs, by degrading the third branch of government.”

To be sure, there is no shortage of political controversy about the subject, which has its roots in the very formation of the Constitution in 1787 and the concept of an independent judiciary and Supreme Court.

The Judicial Branch and its independence

At the Constitutional Convention, the delegates decided to leave the details of how the judiciary system would be structured to Congress. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” reads the opening sentence of Article III of the Constitution. Article III also states that the justices would serve as long as they showed “good behavior” in office and could only be forcibly removed through the impeachment process. (Article 1, Section 8 also gives Congress the power “to constitute Tribunals inferior to the supreme Court.)

In our Interactive Constitution, scholars Richard W. Garnett and David A. Strauss explain how concerns about potential conflicts between state courts and federal courts led to the creation of the federal judiciary. “The compromise was that, just as the Constitution and federal laws would be the ‘supreme Law of the Land,’ there would definitely be a Supreme Court—so a court created by the federal government, with judges appointed by the President, would get the last word, in case state courts did something that was too threatening to the new nation.”

The Judiciary Act of 1789 established the first Supreme Court, when Congress decided that six Justices should be on the Court. In 1801, President John Adams and a lame-duck Federalist Congress passed the Judiciary Act of 1801, which featured the first debate over the number of Justices on the Court. The act reduced the Court to five Justices to limit incoming President Thomas Jefferson’s appointments. However, Jefferson and his Democratic-Republicans soon repealed that act, putting the Court back to six Justices.

In 1803, the Supreme Court reinforced its importance as a separate branch of government when it decided Marbury v. Madison. The Court’s decision in Marbury confirmed the principle of judicial review, including the power to declare laws passed by Congress and signed by the president as unconstitutional.

The number of justices on the Court would change from 1802 to 1869 for various reasons. In 1807, Jefferson and Congress added a seventh Justice when Congress added a seventh federal court circuit. In early 1837, President Andrew Jackson was able to add two additional Justices after Congress expanded the number of federal circuit court districts.

Under different circumstances, Congress created the 10th Circuit in 1863 during the Civil War, and the Court briefly had 10 justices. Congress then passed legislation in 1866 to reduce the Court to seven justices. That only lasted until 1869, when a new Judiciary Act sponsored by Sen. Lyman Trumbull put the number back to nine Justices, with six required at a sitting to form a quorum. (President Ulysses S. Grant eventually signed that legislation and nominated William Strong and Joseph Bradley to the newly restored seats.)

FDR’s controversial court packing plan

Since then, and even with President Franklin Roosevelt’s ill-fated threat in 1937 to add new justices who sympathized with his policies to the Supreme Court, the number of justices on the Court has remained stable at nine.

In 1935, Roosevelt was particularly upset by the Court’s decision in Schechter Poultry Corp. v. United States. The unanimous decision invalidated a key part of the National Industrial Recovery Act, one of the New Deal projects passed during FDR's 100-day program in 1933. “You see the implications of the decision. That is why I say it is one of the most important decisions ever rendered in this country,” Roosevelt told reporters on May 31, 1935. “We have been relegated to the horse-and-buggy definition of interstate commerce.”

As Roosevelt started his second term, he used one of his fireside chats in March 1937 to make his case to the American people for changing the Supreme Court. “This plan of mine is not attacking of the court; it seeks to restore the court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’ The court itself can best undo what the court has done,” Roosevelt said.

The legislation struggled to gain traction, and it was opposed not only by Chief Justice Charles Evans Hughes but also by Justice Louis Brandeis and members of Roosevelt’s Democratic Party. Soon, changing voting patterns on the Court along with vacancies made the court-packing plan a moot point.

Court expansion and the separation of powers

In recent years, talk of adding more members to the Supreme Court or changing eligibility requirements became active in public discourse after the failed Garland nomination. In 2019, Sen. Marco Rubio proposed a constitutional amendment to permanently fix the number of justices on the Court at nine, in response to reports that some Democrats were considering adding more justices after the 2020 elections if they had the power to do so.

In 2021, a presidential commission established by President Joe Biden on the Supreme Court took no position on the issue of court expansion. “The Commission as a whole takes no position on the validity or strength of these claims. Mirroring the broader public debate, there is profound disagreement among Commissioners on this issue,” its report said.

Bills proposed since the 2020 election to alter the Supreme Court have faced several challenges in addition to a lack of support in Congress. Among the direct powers delegated by the Constitution to Congress is the ability to change the number of justices on the Court, as established by precedent. Other changes such as imposing term limits based on years served and retirement age limits on the justices would likely require a constitutional amendment.

However, some members of Congress in recent years have introduced legislation to place an 18-year limit on Supreme Court service with exemptions for current justices. The Congressional Research Service remarked in 2023 that it was likely “that imposing term limits on new justices would also violate the Good Behavior Clause.” In that case, it could be up to the Supreme Court to decide the dispute in an interesting test of the separation of powers doctrine.

Scott Bomboy is the editor in chief of the National Constitution Center.