Presidential Commission on the Supreme Court of the United States
had protested “President Roosevelt’s proposal to pack the Supreme Court … with such vehemence that Roosevelt never forgave me for it,” Congress should not “force upon ourselves a rigidity which can in the future make much mischief. … In the event there is another such move to increase the members of the Court, the then Congress, in the final analysis, can approve or reject, as is deemed best in the national interest.”[63]
Significantly, both supporters and opponents of this proposed constitutional amendment shared one assumption: Congress has broad formal power to expand or contract the Supreme Court, such that the only way to freeze the size of the Court in place was through a constitutional amendment. But significant disagreement arose over whether fixing the size of the Court at nine members would be wise. Some observers see these congressional debates as reflecting a view that expanding the Court for partisan or ideological purposes is inappropriate, but that changing the size of the Court for reasons of institutional efficiency is legitimate.
Since these efforts and until recently, no other attempts have been made in Congress to fix or expand the size of the Court. But the longstanding norm against Court expansion is being challenged today, and bills that would expand the size of the Court and those that propose a constitutional amendment to fix the Court at nine have again re-emerged.[64] As we describe in Part III of this Chapter, the reasons for this re-emergence are specific to our time. But understanding the contested history of efforts at Court expansion is valuable in highlighting the myriad institutional and political interests relevant to evaluating this turn of constitutional events. As one witness before the Commission observed: “[S]eeking guidance from the past can mislead policymakers” but it also “provides a way to make sense of the world.”[65]
II. The Legality of Court Expansion
Article III of the Constitution, which establishes the judiciary, requires that there be “one supreme Court” but does not specify the number of Justices that shall serve on that Court.[66] Article I authorizes Congress to make all laws that are “necessary and proper” to carry out the powers conferred on various institutions of government, which include the Supreme Court.[67] Determining the size of the Court that might be “necessary and proper” to its functioning seems well within Congress’s formal discretion.[68]
The historical practice we recount above also supports the conclusion that Congress has broad authority to establish and change the Court’s size: Congress exercised that power on
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