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What process must one go through to increase the size of the SCOTUS? Would it be a simple bill that needs to be passed? Is this a "two-thirds" situations?

I can find on the internet that Congress decides the size of the court, and that it's described, not in the constitution, but in the US Code. Yet, in spite of this, we see so little about expanding the court enter discourse whenever a major decision relating to the SCOTUS happens, be it for the Republicans in the Obama administration, or with the Democrats in the Trump administration.

Can you really just expand the court with a simple bill? Or is my premonition about the above hinting at a much more nuanced process correct?

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  • I'm voting to close this question as off-topic because this question clearly belongs on Law.SX
    – Martin Schröder
    Mar 5, 2019 at 6:14
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    @MartinSchröder why does not not belong here? From what I see it can work here as well.
    – Joe W
    Mar 5, 2019 at 12:54
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    This is specifically a question about a political body. I.e. what Congress has to do to change the size of the court. Questions about political law are always on topic here. This is also true of things like campaign finance and the rules of the Senate.
    – Brythan
    Mar 6, 2019 at 3:26

2 Answers 2

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The size of the Court is not specified in the Constitution, therefore all it takes to change it is an act of Congress (a simple majority in both houses and the presidential signature).

The size of the Court was changed multiple times, last time in 1869 (Judiciary Act of 1869), here's the timeline (source: Supreme Court of the United States: Legislative History):

Authorized Number of Justices  
1789    6  
1801    5  
1802    6  
1807    7  
1837    9  
1863    10  
1866    7  
1869    9
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    If I may ask a follow up: why did it seem to change so much then suddenly stop by the mid 1800s? Why did they feel the need to change its size? Was it political? Or just "tinkering"?
    – Tirous
    Mar 5, 2019 at 3:40
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    @Tirous USA territory was rapidly expanding at the time (there were 12 states in 1789). Hence the need to expand the federal court system (the number of district courts was also on the rise). The increased activity in the 1860s was the result of a political fight in the aftermath of the Civil war (Judicial Circuits Act)
    – default locale
    Mar 5, 2019 at 3:53
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    @Tirous Term limits for federal judges are potentially unconstitutional (...The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,.. Article III, Section 1). So, even if they reduce the court's size, they'll have to wait for "extra" judges to leave (unless they impeach them). Another option is a constitutional amendment which is harder to pass.
    – default locale
    Mar 5, 2019 at 4:15
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    @Tirous And, by the way, the expansion is only easy from a procedural standpoint. Court-packing for purely political reasons is unlikely to be popular and might provoke a public backlash. It will also severely undermine the power of the SC and create a dangerous precedent.
    – default locale
    Mar 5, 2019 at 4:27
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    Note that FDR proposed raising the number up to 11 in the 1930's after the SC shot down much of his New Deal and none of the justices appeared ready to retire (or die).. However, Congress would not pass that proposal.
    – tj1000
    Mar 5, 2019 at 5:46
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To expand the Supreme Court, they would have to pass a law. To pass a law under current rules requires

  1. A majority of those voting in the House of Representatives.
  2. A 60% super majority of those voting in the Senate to end debate.
  3. A majority of those voting in the Senate (which seem trivial to get if they previously had 60% to end debate).
  4. The signature of the president.

And if the president vetoes rather than signs, overriding the veto requires

  1. Two thirds of those voting in the House of Representatives.
  2. Two thirds of those voting in the Senate.

The 60% super majority of those voting in the Senate is set in the Senate rules. The Senate rules can be changed by a simple majority.

The two thirds super majority to override a veto is set in the constitution. To amend the constitution also requires two thirds of each chamber, or a constitutional convention called by the states. So it would be difficult to do this without the president's consent.

There is no requirement other than passing the bill though. If a Democratic president changed the system to allow a Democratic pack, the next Republican could pass a Republican pack. Because that's a bad idea, both sides have stuck with the current system. It's possible that one or more Senators who caucus with the Democrats might not support a court packing scheme that explicitly favors Democrats. In particular, Joe Manchin and Angus King come to mind. There may be others.

Note that reducing the court is harder. The last time it was done, they simply didn't replace retiring justices until the court was small enough. So a future Republican would be more likely to expand the court again than to start by shrinking it. They might expand it and then pass a law that would shrink it later.

Judicial term limits at the federal level would require a constitutional amendment.

There may be clever workarounds. For example, perhaps only nine justices would be allowed to vote on any particular issue. So there might be twenty-one justices (assuming Democrats and Republicans each add six), but only the nine longest serving unretired justices can vote at any one time. But that's going into untested waters and may be rejected as unconstitutional.

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    I don't see a point to expanding the court and limiting the vote to the same nine each time (as it would be if it was just based on service time), but having an arbitrary panel out of the total court hear cases is an established practice at lower levels. I can easily see someone wanting to expand that to the supreme court.
    – Bobson
    Mar 6, 2019 at 14:30

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