Today there is much discussion about “packing the Supreme Court.” The Constitution in Article III states:

“The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. Note the word “Congress.” Therefore, Congress alone can regulate the size of the Supreme Court and other lesser courts.

The number of justices is not identified in the Constitution. George Washington originally nominated six justices with the number established by Congress in the Judiciary Act of 1789. Since then the number has varied slightly up and down. However, in 1869 Congress set the number of justices at nine.

FACT: The president nominates someone to fill a vacancy on federal courts. This is not packing the court. The Constitution gives the president this responsibility. All Presidents nominate judges who have similar philosophies. In fact, there are no specific qualifications in the Constitution for a Supreme Court nominate. A president can nominate anyone he wishes regardless of age, nationality or education.

FACT: There is also no requirement to have a Judiciary Committee hearing. This has just become a custom. Historians seem to disagree as to the first judiciary hearings on nominees. However, Judge Brandeis in 1916 was among the first to meet with the Judiciary Committee. Interestingly, his religion was a question. He was Jewish. Others identify the Harlan Fiske Stone nomination in 1925. Regardless, this hearing is not required.

FACT: As part of constitutional checks and balance, in Article II, Section 2, Clause 2 of the Constitution, the Senate is tasked with the role of “advise and consent” or confirmation.

FACT: The House has no part of the nomination or confirmation process.

FACT: “Court Packing” is usually considered as increasing the number of justices to swing the court either in a more conservative or liberal direction (even though the court is intended to be nonpolitical).

The most notable effort to “pack the court” was attempted by President Franklin Roosevelt in 1937 when he became disgruntled that the court was striking down some of his New Deal programs. The president promoted the Judicial Procedures Reform Bill which would have added as many as six new justices to the Supreme Court. Both the Senate and the House of Representative had Democratic majorities. However, the “court packing” bill failed. In the Democratically controlled Senate alone the bill was defeated by a vote of 70 to 22.

Today, many historians consider this one FDRs biggest political blunders. What it demonstrates is that even with a friendly House and Senate there is no guarantee that a president can increase the size of the Supreme Court.

Bottom line: Threats to “pack the Supreme Court” have proven to be just that, threats!

Quentin M. Thomas


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