The History and Legitimacy of Court Expansion

This article is written by Dr. Thomas Keck, who is the Michael O. Sawyer Chair of Constitutional Law and Politics and Professor of Political Science at Syracuse University‘s Maxwell School of Citizenship and Public Affairs. For more information about Keck’s work, visit his website.

Calls for legislation altering the size, structure, jurisdiction, and powers of the Supreme Court are a recurring feature of the Court’s history. The Constitution does not specify the Court’s size, and after the first Congress set it at six justices in 1789, the nineteenth-century Congress altered it seven times. The twentieth-century witnessed no such alterations, but one well-known proposal for doing so (FDR’s Court-packing plan) would likely have been enacted had the Court itself not altered the disastrous course by which it prompted such calls.

In this post, I provide three brief historical examples and then spell out two lessons that these earlier episodes may have for today.

When has Court reform happened?

The Revolution of 1800

Following the election of 1800, the Federalist Party famously packed the federal courts on their way out the door. They had lost the election, but lame-duck President John Adams signed a bill increasing the size of the federal judiciary as a whole by more than 70 percent, while simultaneously reducing the size of the Supreme Court from six to five. This latter change would take effect upon the next vacancy, thereby denying incoming President Thomas Jefferson an opportunity to shape the Court. But the former change took effect immediately, and Adams and the Federalist Senate rushed to fill the sixteen new Circuit Court judgeships with loyal Federalists—the so-called “midnight judges” who prompted Jefferson’s famous objection that the Federalists had “retired into the judiciary as a stronghold.”

The Jeffersonian Democratic-Republicans responded by reversing both changes to the size of the federal courts. In other words, by repealing the Judiciary Act of 1801, they simultaneously reduced the size of the lower courts, thereby firing sixteen life-tenured judges, and increased the size of the Supreme Court back to six, thereby enabling Jefferson to make an appointment when the next vacancy arose. The Jeffersonians also impeached and removed a Federal District Judge, then impeached and nearly removed the most partisan of the Federalist Supreme Court justices, Samuel Chase. Federalists denounced the Jeffersonian assaults on judicial independence, but as I argued inJudicial Politics in Polarized Times, you cannot fairly evaluate the Jeffersonian moves without attending to the Federalist moves that prompted them.  

Civil War/Reconstruction

Following the assassination of Abraham Lincoln, his Republican allies in Congress faced a recalcitrant unelected President, Andrew Johnson, who was determined to block their efforts to build a multiracial democracy in the U.S. South. Fearing that Johnson would win the Court to his side, congressional Republicans passed the Judiciary Act of 1866, which reduced the Court’s size from ten to seven, thereby denying Johnson the opportunity to capture it. When Republican war hero Ulysses S. Grant succeeded Johnson, Congress increased the Court’s size to nine.

As with the Jeffersonian Court reforms in the 1800s, the Republican reforms of the 1860s cannot be understood absent close attention to the opposing actions that provoked them—in this case, obstructionist behavior by the justices themselves. As I have argued elsewhere, drawing heavily on Brian McGinty’s account, Lincoln had faced off against a Court that often seemed determined to defend slavery and undermine the Union war effort. When Lincoln took office in March 1861, the Court included five justices from the majority in Dred Scott v. Sanford (including its author, Chief Justice Roger Taney), plus one more recent appointee widely derided as a Democratic partisan. (The Court had nine seats at the time, but three of them were vacant.) Taney’s Dred Scott opinion had famously held unconstitutional a central policy goal of the Republican platform on which Lincoln had been elected (i.e., banning slavery from federal territories). As early as 1858, the Republican press was denouncing the Court as “a mere party machine,” and by 1861, it was calling for Court expansion.

Norther Republicans were concerned not just with the Court’s extreme pro-slavery reading of the Constitution, but also with Taney’s attempts to use judicial power to undermine the Union war effort. Most well-known is Taney’s opinion in Ex parte Merryman (C.C.D. Md. 1861), which sought to invalidate Lincoln’s order authorizing military detention of pro-Confederate saboteurs in Maryland, but Taney also ruled against a Treasury Department regulation prohibiting trade of goods from Baltimore to Confederate sympathizers in southern Maryland, came within one vote of holding that Lincoln had unlawfully imposed a naval blockade on Southern ports, and prepared draft opinions holding unconstitutional the Legal Tender Act (necessary to fund the war), the Enrollment Act (necessary to conscript soldiers for the war), and indeed the Union war effort itself. In the midst of the war, Congress had created some breathing room by expanding the Court’s size from nine to ten, allowing Lincoln to name an additional Union supporter to the bench. In short, post-war Republican concerns about an obstructionist Court were not for nothing.

The Great Depression/New Deal

In the midst of the Great Depression—with unemployment peaking at 25 percent, banks regularly failing (with no federal deposit insurance), and thousands of workers dying annually in workplace accidents—President Franklin D. Roosevelt proposed increasing the Court’s size from nine to fifteen justices. Under his proposal, the size would fluctuate depending on the number of retirement-age justices, but its immediate impact would have been a six-seat increase. He did so after a remarkable series of decisions invalidating key legislative components of the first New Deal—a record of judicial activism towards recently enacted federal statutes that has no parallel in the Court’s history, before or since. When FDR announced the Court-packing plan in February 1937, the Court was widely expected to extend this line of obstructionist decisions to key components of the second New Deal, including the Social Security and Wagner Acts.

Faced with the uncertain survival of democratic capitalism (see Eric Rauchway on FDR’s fears here), FDR called for Court reform. In his 1937 State of the Union address, delivered a month before he announced the Court-packing plan, he reviewed the Court’s record of preventing the federal government from effectively responding to the Great Depression, observing that “the process of our democracy must not be imperiled by the denial of essential powers of free government.” Indeed, “the judicial branch…is asked by the people to do its part in making democracy successful.” Later that Spring, the Court made its famous “switch in time,” upholding first a minimum wage law and then the Wagner and Social Security Acts. The conservative justices then began to step down, allowing FDR to remake the Court without altering its size. By 1941, the Court was unanimously upholding child labor and minimum wage laws in cases like United States v. Darby Lumber Co. (1941). Had the Court not backed down, it is likely that some version of the Court-packing plan would have been enacted. (I’m drawing here on Kevin McMahon’s account.)

When is Court reform normatively defensible?

As the above examples make clear, proposed alterations in the size of the Supreme Court, like other unorthodox innovations in our governing institutions, are a recurring feature of moments of crisis for U.S. democracy.

The high-stakes crisis context sometimes justifies innovations that would be normatively dubious at other times, but it all depends on one’s reading of those stakes. Lame-duck President Adams and his Federalist allies in Congress simultaneously expanded the size of the lower courts and reduced the size of the Supreme Court. If you agree with them that the Jeffersonian Democratic-Republicans posed an existential threat to the survival of American constitutional democracy, then their Judiciary Act of 1801 appears justified, even if unorthodox. The incoming Jeffersonians quickly reversed Adams’s changes, reducing the size of the lower courts and increasing the size of the Supreme Court. If you agree with them that the outgoing Federalists posed an existential threat to the survival of American constitutional democracy, then their Repeal Act of 1802 appears justified, even if unorthodox.

Remarkably, President Trump, Senate Majority Leader Mitch McConnell, and the Roberts Court collectively seem poised to repeat the missteps of all three of the historical episodes I have reviewed here—in other words, to provoke calls for Court reform in nearly every way that such calls have been provoked in the past.

1) After stonewalling President Obama’s nomination of Merrick Garland to the Supreme Court and likewise holding open more than 100 vacancies on the lower courts, McConnell’s Republican Senate has gone to extraordinary lengths to rush through more than 200 Trump-appointed judges, with Amy Coney Barrett’s down-to-the-wire confirmation recalling the midnight-judge scenario of 1800. Moreover, several of the conservative justices have made public comments recalling Justice Chase’s partisan tirades during the 1800 election. Consider, e.g., Brett Kavanaugh’s famous “what goes around, comes around” outburst during his 2018 confirmation hearing or Justice Alito’s nakedly partisan keynote address to the Federalist Society just a week after the November 2020 election.

2) Looking ahead to the next couple years, there is good reason to believe that the Roberts Court will actively obstruct the domestic policy agenda of the incoming Biden administration. Indeed, a variety of doctrinal signs suggest the Court may do so as regularly, repeatedly, and thoroughly as the Hughes Court did to FDR from 1933-36. Like FDR in 1933, Biden comes to office at a time of profound national crisis, and with an expansive legislative agenda for addressing, at minimum, American’s public health, economic, climate, and racial justice crises. As Alito’s Federalist Society address made clear, virtually all aspects of this agenda face judicial headwinds.

3) Again speculative, but there is also good reason to believe that the Roberts Court will obstruct the strengthening and renewal of American democracy as firmly as a Court constructed by President Johnson would have in the 1860s and 70s. As Steven Levitsky and Daniel Ziblatt have argued, the central crisis of twenty-first century U.S. democracy is the unwillingness of a declining white electoral coalition to relinquish power to a rising multiracial one. And if there is anything clearly known about the newly expanded six-justice conservative majority on the Court, it is that they will use any legal tools available to weaken the democratic character of our electoral system, in ways that aid the minority Republican Party’s effort to maintain power in the absence of broad public support.

This third provocation is significant enough that a few brief examples are in order.

Chief Justice John Roberts thinks the constitutional text prohibits voters from adopting non-partisan redistricting commissions via state-level ballot initiative processes. (Paul Clement, the leading GOP Supreme Court litigator, has wondered aloud if the same text prohibits Congress from mandating non-partisan redistricting commissions, even though the provision at issue grants Congress explicit authority to “make or alter” state rules governing congressional elections.) Chief Justice Roberts also thinks the 1965 Voting Rights Act violates the equal “dignity” of the states, though the constitutional text mentions no such principle. Justice Alito thinks that the federal “motor voter” law—enacted during the Clinton era for the express purpose of increasing voter registration and expanding participation in federal elections—allows states to systematically purge their voter rolls in ways that “disproportionately affect…minority, low-income, disabled, and veteran voters” (to quote Justice Sotomayor’s dissent).

Over the past year, Roberts, despite his purported commitment to preserving the Court’s image and prestige, has overseen a dramatic expansion of the Court’s so-called shadow docket, by which the justices now regularly intervene at early stages of litigation, summarily and without the benefit of oral argument. The principal uses of this shadow docket throughout 2020 have been to enjoin executive actions making it easier and safer to vote in the context of the COVID-19 pandemic and to vacate lower court injunctions of executive actions making it harder and more dangerous to vote in this context.

In the weeks leading up to the election, some of Roberts’s conservative colleagues pushed even more aggressively on this front, with Thomas, Alito, and Gorsuch insisting not only that a Federal District Court was wrong to enjoin South Carolina’s witness signature requirement for absentee ballots, but that the state should throw out all ballots cast without such a signature while that injunction was in place. The same three justices sought to enjoin an extension of the mail ballot receipt deadline by North Carolina election administrators and judges, with Gorsuch endorsing an extreme formalist reading of the Constitution’s Article II Electors Clause, purportedly granting the federal courts unprecedented authority to second guess state courts’ reading of state statutory law. Kavanaugh endorsed this same line of argument in another shadow docket holding from Wisconsin.

Chief Justice Roberts has not joined his conservative colleagues in their most extreme efforts on this front, and as it happens, Biden’s decisive victory rendered most of these legal issues moot for the current election cycle. Nonetheless, the Supreme Court’s efforts to micromanage state election rules have encouraged other federal courts to do likewise, exacerbating voter confusion regarding ever-shifting rules and contributing to Trump’s false narrative that the election results are in doubt. Moreover, while we dodged the bullet of mass judicial invalidation of already-cast ballots this time around, Justice Barrett will likely join the Court’s anti-voting rights wing in future cases, providing conservatives with a controlling majority even when Roberts does not join them.

To link the GOP’s second and third provocations for Court reform, recall that one of the top legislative priorities of the incoming 117th Congress is the John Lewis Voting Rights Act, together with the broad range of democracy-reform measures included in the 116th Congress’s H.R. 1. If enacted, there is every reason to believe that the Roberts Court will invalidate key components of these laws.

When is the right time for Court reform?

Once Court reform proposals get off the ground, there are two key sequences by which they play out—either in response to aggressive judicial obstruction of the governing party’s agenda or preemptively, in anticipation and fear of such obstruction. In the 1930s, FDR was trying to lead the country out of the Great Depression, and he had a popular mandate for doing so. The Court obstructed his efforts at a rate never equaled in our history, and he responded with the Court-packing plan. In the 1800s and 1860s, the Jeffersonian and Republican Congresses repeatedly altered the Court’s size in an effort to prevent the lame duck President Adams and the unelected President Johnson from frustrating their efforts at democratic renewal. Both the 7th and 39th Congresses feared that the federal courts would join the obstruction of their agendas, but they launched Court reform without waiting for full-scale judicial obstruction to emerge.

This distinction between responsive and preemptive reform is not a sharp one. FDR proposed Court-packing because the Court had invalidated nearly all of the first New Deal, but also because he feared that it would soon invalidate the Wagner Act, Social Security Act, and other key elements of the second New Deal. Likewise, Reconstruction Republicans were responding to some obstructionist acts already taken by the Court as well as anticipating even more significant obstruction to come. But the two sequences help highlight two different paths by which such conflicts can play out.

If Biden had won sizeable Democratic majorities in both houses of Congress, preemptive Court reform may have been on the table. Prior to Justice Ginsburg’s death, the odds of such preemptive action were long (indeed, close to zero, in my book). But if Senate Republicans had been massively repudiated by the American people at the polls, immediately after having pushed through a midnight judge, then all bets would have been off.

As it happens, the Senate will be closely divided for Biden’s first two years in office. Indeed, as I write this post, partisan control of the Senate remains unclear, pending the outcome of two runoff elections in Georgia on January 5, 2021. No matter how those elections play out, Democrats will not have the votes for preemptive Court reform in 2021. If Georgia Democrats Raphael Warnock and Jon Ossoff both win, the Senate will be tied 50-50, with Vice President Kamala Harris wielding the tie-breaking vote. With no votes to spare—and with multiple crisis-level legislative priorities—Democratic leadership is unlikely even to pursue Court reform, with the possible exception of expanding the lower courts, as Leah Litman has proposed.

Still, with the New Deal episode in mind, it is easy to see why the outcome of the Georgia runoffs remains crucial to the path that Court reform might follow. With a Democratic Senate majority—even a one-vote majority—the Biden administration could be expected to quickly push through an expansive economic stimulus and COVID relief bill, along with the John Lewis Voting Rights Act and perhaps a couple additional key priorities. All such Democratic bills will face legal challenge immediately upon enactment. If the Court invalidates key provisions, and if Biden is able to expand his legislative majorities in 2022 or 2024, then long-running political pressure to do something about the obstructionist Court may reach a tipping point, as it did in 1937.

In sum, come January, President Biden will find himself facing a Court that has been illegitimately packed by the opposition party on its way out of power; that stands opposed to majoritarian, multiracial democracy; and that is committed to a constitutional vision under which much of the platform on which Biden was elected is constitutionally suspect. If history is any guide, Court reform will remain on the table until President Biden’s political coalition collapses or Chief Justice Roberts steers a non-obstructionist path. If neither of those paths unfold, Court reform is virtually inevitable.

2 thoughts on “The History and Legitimacy of Court Expansion

  1. Court packing is wrong. Judges should be chosen because of their decisions that are Constitutionally based and follow established law. Their personal opinions should have no play in their decisions. They should not attempt to establish law. They are to be impartial.

    There is no place for court packing on either side of the political spectrum. Without impartial judges, we are a lawless society.

Leave a Reply