“Packing The Courts?”

Unpacking Biden’s new commission tasked with evaluating potential changes to the Supreme Court

The Supreme Court is the highest court in the United States & its creation is mapped out in the Constitution. What’s not written into the Constitution? The maximum number of Justices allowed to serve at any one time. As a result, this number has always fluctuated between 6 and 10, eventually settling on a “standard” of 9 Justices. Since the Civil War, 9 Justices has been the de facto norm…although not legally binding. 

Is there a minimum?

In 2016, Justice Scalia died and Judge Merrick Garland was nominated by then-President Obama. In an unprecedented move, then-Majority Leader McConnell said he would not take up the nomination – leaving 8 Justices on the court until after inauguration of Trump in 2017. In the discussion on the total number of Justices, this instance has been used to show that the lack of clarity has been employed previously to keep the court down. 

Is there a maximum?

In 1863, the total number of Justices rose to 10, before being brought back to a total of 9 by a Congressional bill passed in 1865. It has stayed at 9 ever since then, but in 1937 FDR attempted to pass a bill that would incentivize Justices to retire after age 70, and allow for up to 15 Justices on the court. This legislation was met with stark opposition and eventually failed. However, this legislation highlighted that there is clearly no number set in stone and the prevailing total is open to influence by the Congress.

Biden’s Supreme Court Commission 

Since the hasty confirmation of Justice Amy Coney Barrett, following the death of Ruth Bader Ginsburg in the weeks preceding the Presidential election, many Democrats have asserted their interest in expanding the court to balance the influence. The recently formed commission is the first step in addressing this effort, although currently there doesn’t appear to be enough support in the White House to see this through. The commission will investigate matters such as expanding the number of Justices, imposing term limits, adding a mandatory retirement age, as well as other proposals to alter the Court’s ability to strike down acts of Congress. 

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