For the sake of argument, let's say that the US Senate, House, and Presidency are won by the same party; and they decide to pack the court. How is the number of judges in the Supreme Court decided?

Is it one vote to expand the Supreme Court and another vote to determine how many more justices will be added?

FDR wanted to expand the Supreme Court to as many as 15 judges, but how is that number reached and how is it confirmed?

  • 1
    Surely the number of judges required to 'pack the court' is simply determined by the number of judges required to give the currently ruling party a majority...
    – Valorum
    Oct 18, 2020 at 10:04

2 Answers 2


The current size of the Supreme court was set by the Judiciary Act of 1869 and it would be changed by passing another bill through Congress setting a different size. This is just a normal bill, and would go through the same process as any other bill: it would need to pass a majority vote in the House and Senate, then be signed by the President, or have a Presidential veto overruled by both houses.

There's nothing special about this process: there would just be a single bill that sets the size of the Supreme Court to X Justices.

So, to answer your questions:

  1. The number of Justices would be determined by whoever writes the bill.
  2. The increase in size would be in a single bill which would need to pass both Houses
  3. There's no magic formula here: The Judicial Procedures Reform Bill of 1937 set the size to 15 because that's the number FDR and his allies chose
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    No, one bill that sets the size at X
    – divibisan
    Oct 16, 2020 at 19:50
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    @ItalianPhilosophers4Monica Why do you think it's a loophole? The Court initially had 6 members and has increased several times as the country has grown. The Constitution only says there will be a Supreme Court, and it deliberately left the size up to Congress. You could change that, as you suggest, with a Constitutional amendment which set the Court to a certain size. Then, another amendment would be required to change it in the future.
    – divibisan
    Oct 16, 2020 at 20:25
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    @divibisan - It could well be viewed as a loophole because it potentially allows for the judicial power to be more or less subordinated to the legislative power during a single administration. As has generally been seen in countries that are not rated highly on democracy indices, this can let a leader perpetuate themselves in power much more easily, as long as they are lucky enough to win a simple majority of the legislative branch (or a coalition).
    – Obie 2.0
    Oct 16, 2020 at 20:44
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    @ItalianPhilosophers4Monica I've heard it said repeatedly in the last three years that Americans are learning how much of our checks and balances rely on norms and their unofficial enforcement. Oct 16, 2020 at 20:47
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    @ItalianPhilosophers4Monica: The judiciary was never intended to function as a "super branch" with supremacy over the other two branches of government. Congress has always had the ability to (for example) limit the Supreme Court's jurisdiction, establish new inferior courts, confirm or reject the President's appointees, etc. All three branches have an obligation to the Constitution which supersedes other laws; the judiciary merely enforces its obligation more strenuously than the political branches.
    – Kevin
    Oct 16, 2020 at 21:18

To be absolutely clear... The only reason that the Democrats would 'pack the court' in this manner would be because the Republicans are currently trying to 'pack the court' with a pronounced conservative bent (explicitly, by preventing Obama from appointing a Justice when an opening became available in the last year of his second term, then pushing through a Justice in the last months of Trump's term). All the exaggerated political keening and pining aside, this is (frankly) straight-forward politics. The GOP is trying to use politicalization of the court as a means to ensure their political dominance into the future, for reasons of their own. If the Democrats take full control of the government in 2020, they will work to undo that, for reasons of their own. They could, and likely will, add as many justices and judges as they need to get slightly better than par.

As the wise men say: don't put all your eggs in one basket; don't count your chickens before they hatch; be careful about letting the fox into the henhouse. Do not ask me why so many of these aphorisms are chicken-related...

Congress can expand the Supreme Court at will: that is merely a matter of passing a bill, and if the Democrats take control of both Houses and the Presidency that is a non-issue. Congress can impeach and remove Supreme Court Justices at will: again, a non-issue if Democrats control both Houses (though one subject to the need to acquire a supermajority in the Senate). Congress is (again, frankly) in the driver's seat in US politics if it so chooses to be, but Republicans (as the minority party) have over the last 20 years or so have instituted a policy of obstructionism, shifting more and more power off to the President (when the President is Republican), while refusing to pass actual laws. They favor executive orders, because executive orders are easier to institute when favorable, and easier to obstruct when disliked, than any actual law. That works in the favor of the minority party, which Republicans have been for some time.

Since the current (pre-appointment) partisan split is either 5-3 o 4-4 (depending on how one counts Roberts), I expect the Democrats would aim for 11 or 13 Justices. That should restore balance without seeming overtly partisan. The goal is to appear as though one is addressing an injustice rather than packing the court; but that too is a matter of politics.

I haven't looked deeply into Barrett. Clearly the GOP hope is that Barrett will act as a conservative stooge, simply reiterating conservative ideology in judicial decisions. That is possible, but problematic. Any person nominated for the Supreme Court is going to be both intellectually sophisticated and painstakingly independent; they have they own reputation to think about, and their decisions will be less biased than partisans anticipate. But ultimately SCOTUS cannot match the power of Congress. Congress makes laws, and if the Supreme Court overturns this or that with an unfortunate ruling, Congress can write law to replace whatever the Supreme Court undoes. Packing the Court (by Democrats or Republicans) is in the end a losing scenario.

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    I'm not sure i agree with you about the Republicans' policy on executive orders. Looking at historical data, high numbers of executive orders don't seem to be a pattern of any particular party, but rather the norm for over a century. presidency.ucsb.edu/statistics/data/executive-orders
    – PC Luddite
    Oct 17, 2020 at 13:39
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    As for shifting power to the president, that has been the pattern of American politics since its inception. Both parties do it when they can.
    – PC Luddite
    Oct 17, 2020 at 13:41
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    @PCLuddite: That's actually not true, o at least not intentional the way it has been since the beginning of the W Bush administration. There has been a 'push me pull you' fight between giving more power to the federal government and more power to the states (largely over slavery and race-relations), but that was mostly centered on the power of Congress to pass binding laws over state legislatures. Congress has never abdicated its power this way before. There's a really long discussion here we shouldn't get into; it's an answer to some other question. Oct 17, 2020 at 15:28
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    @PCLuddite I’d agree with you that the increase in executive orders isn’t a specifically Republican policy, so much as a result of Congress’ abdication of power.
    – divibisan
    Oct 17, 2020 at 19:25
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    Your answer, if I counted correctly, consists of 23 sentences. Of these, only the first sentence of the third paragraph addresses the question. This is not the appropriate forum for discussing your personal opinion of the legitimacy of Republican's actions, or the appropriateness of packing the court in response. This answer follows divibisan's by several hours, and despite being considerably longer, its answering-the-question content is quite a bit lower. Oct 18, 2020 at 1:34

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