If either party (i.e. Democrats or Republicans) in the US would proceed to "pack the Supreme Court", what would be stopping the next administration (i.e. after power has switched once again to the other party in an election) from just doubling (plus one) the number of judges again, in order to re-gain a majority of judges that are to their own liking? Nothing?
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1In principle, the party packing the Court could pack it with justices who will overturn any new law extending the size of the Court again, no matter how clearly it is phrased. The law ultimately means what the Supreme Court says it means, not what Congress says it means. Then you would have to wait for enough of them to die, or perhaps impeach them if you can get a sufficient majority.– Mike ScottSep 22, 2020 at 19:53
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It's not directly an answer, but there are court reform options other than simply adding more judges, and some of them can't really be "topped" (although they can always be reversed). For example, changing the qualifications for judges, or the number who have to agree to overturn precedent, or invalidate something on Constitutional grounds (to name some proposals I've seen).– BobsonSep 22, 2020 at 21:44
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4At a certain point, the eligible population would be a limiting factor. Not including population growth, this could only be done about 24 times before every adult in the US (~200Mn) becomes a justice.– NPSF3000Sep 23, 2020 at 4:44
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2 Answers
Functionally, nothing except the regular requirements of passing legislation and nominating justices.
Altering the number of judges on the Supreme Court is as simple as passing legislation through the normal channels, as the Constitution is silent on the number of judges on the Court. This was last altered in 1869, when the Judiciary Act of that year set the number at nine; the Chief Justice, and eight associate Justices.
Assuming a presidential administration has the numbers in the House and the Senate to pass such legislation it follows that they also have the required numbers to confirm a nominee, as the elimination of the filibuster for Supreme Court nominations in 2017 ensures that a party in control of the Senate may pass a cloture vote by simple majority in order to end attempts to delay a confirmation vote.
Attempts to filibuster the legislation to expand the Court could be successful, depending on the partisan composition of Congress, however given the precedent set in 2017, it is perfectly possible that a filibuster could be overridden by another use of the 'nuclear option'.
Politically, however, the consequences for the credibility of the Court and the Judiciary as a whole would of course be significant, which could make an administration pause before retaliating. The danger of inviting a tit-for-tat response was, in fact, acknowledged by Joe Biden during the fourth Democratic debate in October 2019:
Erin Burnett: Vice President Biden, the Constitution does not specify the number of justices that serve on the Supreme Court. If Roe v. Wade is overturned on your watch and you can't pass legislation in Congress, would you seek to add justices to the Supreme Court to protect women's reproductive rights?
Joe Biden: I would not get into court packing. We [add] three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.
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3Well, it specifies that there is at least one justice by mentioning the position of "Chief Justice" (oddly not in the clause establishing the court, but rather in the impeachment trying clause). But that's a technicality. Sep 21, 2020 at 12:26
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1@zibadawatimmy the implication that there's at least one justice sitting on the court is perfectly clear in the first sentence of article three. How could "the judicial Power of the United States, ... be vested in one supreme Court" otherwise? If anything, mention of a "chief" justice implies that there are at least two justices. But neither of these provisions really specifies any number of justices. They only imply it.– phoogSep 21, 2020 at 19:01
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11"Politically, however, the consequences for the credibility of the Court and the Judiciary as a whole would of course be significant" that ship may have sailed Sep 22, 2020 at 13:09
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3@CGCampbell one is the natural extension of the other. If the people appointing judges are shamelessly partisan in their actions, my faith that their appointees are going to be impartial and non-partisan in their decisions is shaken right out of the gate. Sep 22, 2020 at 18:28
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I think there is an element of control wanted. The more justices the less likely they can be controlled. That is what politics is about.– blankipSep 23, 2020 at 4:14
In theory, nothing prevents this. In practice, though, it's not a decision that lies with the president, so it requires a majority vote of both houses of congress in addition to the president's signature. It's therefore unlikely to occur every four years or eight years even if the present reluctance to increasing the size of the court might abate. Furthermore, at some point the justices themselves will probably start objecting if the court's size becomes unwieldy, thereby making it difficult to conduct the court's business.
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3On the other hand, some countries have big supreme courts where only a set of justices take on each case. So there would be ways to change how SCOTUS works if it were packed to 18 members, although I know change is scary for justices. Sep 21, 2020 at 18:48
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@AzorAhai--hehim yes, it's certainly possible for the court to be organized such that each case was heard by a subset of justices. This would probably require additional changes to the legislation, however, since the court's quorum is set by statute.– phoogSep 21, 2020 at 18:54
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While the justices might have an opinion on how many justices there are, it's probably completely irrelevant. Presumably the reason you want to change the number of justices is because you don't like the current population, so their opinion and the opinion of my cat have equal influence on the outcome. Sep 22, 2020 at 17:02
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1@AzorAhai--hehim In fact there are lower courts in the US that operate that way today, so the model already exists. Sep 22, 2020 at 18:11
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@DarrelHoffman That's presumably done to handle the case load of the lower courts are required to handle. SCOTUS gets to decide which cases have sufficient merit for the entire court to deliberate on them. Although I suppose if they operated as subsets they could accept more cases.– BarmarSep 23, 2020 at 17:54