Court Extension

Since his November 2020 election, President Joe Biden has been urged to propose federal legislation that would increase the number of justices on the U.S. Supreme Court. Doing so would not be the first attempt to expand the court. President Franklin D. Roosevelt tried and failed in 1937. We asked Kimberly West-Faulcon to explain “court-packing,” a political battle whose precedent may say much about its present prospects.—The Editor

Who coined the term “court-packing”? 

Opponents of the Judicial Procedures Reform Bill of 1937 used the term “court-packing” to describe the proposal in a pejorative manner. 

Why did FDR attempt to expand the court?

FDR as well as the majority Democrat U.S. Congress had been elected by voters who supported the New Deal platform to redress the dire economic conditions of the Great Depression by enacting pro-worker legislation. However, the Supreme Court was comprised of justices who had such strong pro-business economic policy preferences that they became infamous for striking down progressive-era federal laws like the National Industrial Recovery Act. This Supreme Court struck down more major federal laws than at any other time in the nation’s history. FDR’s rationale for adding justices was that it was contrary to the will of the voters who had elected him and the majority Democrat Congress for unelected Supreme Court justices to override the judgment of the Congress on legislative policy. 

How would FDR’s plan have changed the court?

The proposed law created a new judgeship for every federal judge over 70 years old, adding six new justices.

Why did FDR’s plan fail?

Although many Americans, especially political progressives, were angry with the court’s repeated overruling of legislation protecting workers and regulating the monopolistic actions of big business, elite lawyers, for example, formed groups like the National Committee for Independent Courts which successfully created opposition arguing FDR’s plan was a presidential power grab that constituted an assault on the rule of law. 

If FDR’s plan failed, how did the New Deal happen?

Many view FDR’s threat to increase the size of the court as an important contributing factor in a now-famous change in 1937 from the Supreme Court overruling to upholding progressive New Deal legislation. The subsequent retirement or death of five justices allowed FDR to make five appointments to the Supreme Court in his second term even though his legislative proposal was never passed.

Is the size of the Supreme Court specified in the Constitution?

No, the text of the Constitution is silent. The number of justices has ranged from five to 10, but has been nine since 1869.

Why do some advocates urge President Biden to increase the size of the court?

Some contend the current justices, when interpreting the law, are improperly imposing their personal policy preferences like the justices FDR criticized for usurping the role of the president and Congress. Others urge Biden to increase the size of the court to redress the fact that Republican Senate Majority Leader Mitch McConnell impeded the March 2016 nomination of Merrick Garland, President Barack Obama’s nominee, but oversaw the confirmation vote of Justice Amy Coney Barrett, President Donald Trump’s nominee, just seven days before the November 2020 presidential election. McConnell had opposed Senate action on Garland’s nomination on the grounds that it should not take place within seven months prior to a presidential election.

What is the central argument against expanding the court, and, if you were advisor to President Biden, would you recommend he attempt it?

If it were to become commonplace to pass laws changing the size of the Supreme Court, it could severely diminish the power and stature of the court to serve as a check on the powers of the president and Congress. The Democrats’ razor-thin margin of control in Congress would make the passage of such legislation extremely difficult. Even if Biden deemed it appropriate, unless and until the vast majority of the American electorate also favors adding more seats to the Supreme Court, a plan to do so has little chance of being enacted into law. 

Kimberly West-Faulcon holds the James P. Bradley Chair in Constitutional Law and is a professor of law at the LMU Loyola Law School. She has published numerous articles in law journals and is a frequent commentator in media outlets including CNN, The New York Times, the Los Angeles Times, The Chronicle of Higher Education and elsewhere.