You Can’t Teach an Old Dog New Tricks — or Can You? New Robes, Old Tricks??

In comparison to the executive and legislative branches of government, the judicial branch – home to the Supreme Court – has historically been the most eclectic of the three. Ever since the inception of our nation, the role, power, and authority of the Supreme Court, have for the most part, taken a public backseat to the other two; this can largely be attributed to the media frenzy that has oftentimes enshrouded the executive and legislative branches. Despite this historical trend however, the spotlight seems to be shifting, due to the many recent controversial landmark decisions taken by the current court. This has caused both parties to once again spar over the concept of court-packing.

During the administration of former President Donald Trump, now Republican presidential candidate, we saw the idea of court packing returning with democratic legislative leadership pushing for the addition of justices. What triggered the re-emergence of court packing was Trump’s third supreme court justice appointment of Justice Amy Coney Barrett, solidifying a 6-3 conservative majority on the court. The 6-3 tilted court presided over some historic decisions, such as the overturning of Roe v. Wade and revoking Affirmative Action from the college admissions process in 2022 and 2023 respectively.

By virtue of the recently cemented conservative majority and the “for life” Supreme Court justice tenures, progressive and democratic leadership have become increasingly more vocal when it comes to flirting with the expansion of the court to counterbalance its current composition. President Joe Biden began to toy with the aforementioned idea this past July when his administration proposed the imposition of term limits for justices in an attempt to radically transform this 250 year legal institution, but also to balance the scales of justice— albeit politically. While court packing might seem like a fairly novel political move, it is nothing new, as this idea has been around since the civil war, and was most recently used by the administration of Franklin Delano Roosvelt.

Additionally, the legalities surrounding court packing itself further muddies the issue. This stems from ever shifting legislation which affects the legal grounds for Supreme Court size alterations. Additionally, changing the Supreme Court justice count would also contradict roughly two centuries of historical precedence. Moreover, the constitution itself does little to address the aforementioned, and the most relevant piece of legal statute we have from it is Article III which establishes the judiciary but still does not specify the number of justices required to sit on the court. 

That being said, the legal precedent surrounding Supreme Court justice numbers was first set by the Judiciary Act of 1789, initially capping the number of justices at six. Over the following decades however, Congress would alter that number several times, increasing it to as many as 10 during the Civil War. It should however be noted that, “after the war [Congress] passed legislation in 1866 to reduce the Court to seven Justices. That only lasted until 1869, when a new Judiciary Act sponsored by Senator Lyman Trumbull set the number back to nine Justices, with six Justices required at a sitting to form a quorum.” Thus, the legal power to change the size of the court lies solely with Congress. Today, there is nothing stopping legislators from increasing (or decreasing) the number of justices today – except for bitter bipartisanship, political scheming, and the congressional gridlock. 

Furthermore, as previously mentioned, the most famous and recent historical attempt at court packing occurred in 1937 under the administration of President Franklin D. Roosevelt. Despite his popularity, he was not immune from attacks criticizing the supposed wartime authoritarianism of his administration; beyond his assumption of four presidential terms, many critiques were made about his ardent efforts to pack the court. What spurred this was FDR’s frustration with a conservative Supreme Court that had repeatedly blocked crucial elements of his sweeping New Deal legislation. In response, FDR proposed adding one new justice for each sitting justice over the age of 70— a number which was expediently chosen as it would have allowed him to nominate up to six new justices giving him a comfortable majority on the court. As expected, Roosevelt’s plan sparked intense political controversy and was ultimately rejected by Congress with the judicial committee announcing their fervent opposition to the plan— ironically President Roosevelt outlasted seven of the nine justices who sat on the bench in 1937.

Like all political moves, court packing is not without its legal implications and aftershocks. First and foremost, altering the size of the Supreme Court purely to influence desired political outcome both taints and effectively undermines the judiciary's independence regardless of  whether the court has a textualist, pragmatist, conservative or progressive tilt. The separation of powers, and checks and balances ensures that the judiciary functions as a check on both the executive and legislative branches, and overtly politicizing the court could possibly weaken the judicial branch's ability to perform this role. If court packing were viewed as a tool for political gain rather than judicial reform, it could set a dangerous precedent, inviting future administrations to continually expand or shrink the Court whenever a particular party holds congressional majorities. However, it does need to be mentioned that in the spirit of checks and balances, lifetime appointments to the highest court of the land, of the same nine or so individuals, spanning multiple decades is inherently incongruent to those integral values which our government relies on.

Due to the hyper-partisan nature of the American political machine, one can only help but wonder if we will see some new faces on the country’s highest bench, or if it will still be the same nine.

Aditya Lodha is a fourth-year student at Brown University who is currently pursuing a concentration in History with a focus in law and society. He is a staff writer for the Brown Undergraduate Law Review and can be contacted at: aditya_lodha@brown.edu!

Yani Ince is a senior concentrating in History and Political Science. She is a blog editor for the Brown Undergraduate Law Review. She can be reached at ianthe_ince@brown.edu