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“Court Packing”: Legislative Control over the Size of the Supreme Court

CRS Legal Sidebar Prepared for Members and Committees of Congress – “Court Packing”: Legislative Control over the Size of the Supreme Court, December 14, 2020: “In the past year, legal commentators, policymakers, and the national press have devoted significant attention to proposals to increase the size of the Supreme Court, sometimes colloquially called“court packing.” Many recent court expansion proposals are premised on the belief that, if more seats were added to the Supreme Court, it would give the President who nominates the new Justices significant power to shape the Court in a way that aligns with the policy preferences of the President and the controlling political party. The Constitution generally grants Congress control over the size and structure of the federal courts and, during the first century of the Republic, Congress enacted multiple statutes changing the size of the Supreme Court. However, since the Reconstruction era, the Court’s size has been set at nine Justices. The last notable attempt to enlarge the Court occurred in 1937, when President Franklin Delano Roosevelt’s Administration proposed legislation broadly viewed as an effort to make the Court more favorable to President Roosevelt’s New Deal policies. Congress declined to act on the Roosevelt Administration’s proposal in large part because of concerns that it impermissibly infringed on the principle of judicial independence enshrined in Article III of the Constitution. Recent Supreme Court expansion proposals have likewise prompted debate about the role of the judiciary and the means by which political actors may influence the Supreme Court’s approach to interpreting the law.This Legal Sidebar provides an overview of the legal issues surrounding Supreme Court expansion. It first briefly discusses Congress’s constitutional power to structure the federal courts, then surveys past legislation changing the size of the Supreme Court.The Sidebar next considers constitutional constraints on Congress’s power to change the size and structure of the Supreme Court, including both express textual limits and implied limits that may restrict Congress’s ability to alter the Court’s makeup. Finally, the Sidebar surveys selected proposals to modify the size or composition of the Court through legislation or constitutional amendment…”

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