Presidential Commission on the Supreme Court of the United States
Chapter 2: Membership and Size of the Court
In recent years, calls to expand the size of the Supreme Court have become a significant part of the debate over the Court and its role in American government. Although there is widespread agreement among legal scholars that Congress has the constitutional authority to expand the Court’s size, there is profound disagreement over whether Court expansion at this moment in time would be wise. We do not seek to evaluate or judge the weight of any of these arguments, and the Commission takes no position on the wisdom of expansion. In this Chapter, we begin in Part I by presenting an account of past efforts to expand or contract the size of the Court, which occurred at various points in the nineteenth century and perhaps most famously during the New Deal era. In Part II, we consider whether Congress has the authority to expand the size of the Court. In Part III, we articulate the arguments made by proponents of expansion, as well as the arguments made by those who oppose any such efforts. In Part IV, we consider other proposals that have been made during recent reform debates to restructure the Supreme Court.
I. A Brief History of Efforts to Alter the Size of the Court
Although debates about Court expansion and restructuring have become increasingly salient in recent years, there is a long history of similar disputes earlier in U.S. history. Congress contracted or expanded the size of the Supreme Court several times in the nineteenth century, and President Franklin Roosevelt sought to expand the Court during the New Deal era. But the size of the Court has remained at nine Justices since 1869. This section details the history of efforts to alter the size of the Court.
A. Nineteenth-Century Changes to the Court’s Size
Article III provides that the “judicial Power of the United States, shall be vested in one supreme Court.”[1] But the constitutional text does not specify how many Justices should be on that Court. Congress on several occasions in the country’s first century altered the size of the Court. In 1789, Congress fixed the size of the Court at six members.[2] A decade later, Congress began to make changes. After Thomas Jefferson defeated John Adams for the presidency in 1800, but before the newly elected President Jefferson took office, the outgoing Federalist Congress in 1801 reduced the Court’s future size to five members.[3] (The Federalists did not
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