What Is Court Packing?
Court packing is adding seats to the Supreme Court in order to install justices who will shift its rulings. The phrase describes the motive, not the mechanics. Supporters call the same act court expansion and argue it answers a Court that no longer reflects the country. Either way, the number of justices is set by ordinary law, not by the Constitution.
Court packing is adding seats to tilt the Court. Court expansion is the neutral term for the same act. Court reform is the broader menu that also includes term limits, an ethics code, and limits on what the Court can hear.
Key facts
- The Constitution sets no number of justices. Congress has fixed it by law since 1789 (Brookings).
- Congress changed the size seven times before settling on nine in 1869 (Brennan Center).
- Changing the size takes a law, not an amendment. In the Senate that means 60 votes unless the filibuster changes.
- Franklin Roosevelt tried to add up to six justices in 1937. A Senate his party controlled sent the plan back to committee, 70 to 20.
- 79% of Americans favor term limits for justices. Adding seats splits the country 53% to 47% (Marquette, September 2026).
The number nine has held for more than 150 years, longer than any other count. That stability is one reason changing it now draws the “packing” label, but the stability is a habit, not a rule.
Who Sits on the Supreme Court Now
The current push to change the Court starts with its makeup. Six of the nine justices were appointed by Republican presidents and three by Democratic presidents.
- Appointed by Republican presidents (6 justices) Roberts, Thomas, Alito, Gorsuch, Kavanaugh, Barrett
- Appointed by Democratic presidents (3 justices) Sotomayor, Kagan, Jackson
Current members as of September 24, 2026. No seat is vacant. Source: Supreme Court of the United States.
Supporters of expansion point to how the six-justice majority was built. In 2016, the Senate refused to hold a hearing for President Obama’s nominee, Merrick Garland, for most of a year. In 2020, it confirmed Amy Coney Barrett eight days before a presidential election. Opponents answer that both moves followed the Senate’s rules, and that the Court’s makeup reflects who won presidential and Senate elections.
How Congress Changes the Court’s Size
Article III of the Constitution creates “one supreme Court” and says nothing about how many people sit on it. That silence hands the decision to Congress. The first Congress set the number at six in the Judiciary Act of 1789, and every change since has come the same way, through a bill that passes both chambers and gets signed.
On paper, resizing the Court takes a simple majority in each chamber, with no amendment and no state ratification. In practice, a bill in the Senate needs 60 votes to get past a filibuster, so a party would have to hold 60 seats or change the rule first. That is why expansion talk usually travels with talk of ending the filibuster.
Term limits are different. Many legal scholars argue that capping a justice’s tenure would require a constitutional amendment because Article III grants judges their seats “during good Behaviour,” which courts have read as life tenure. Others say an 18-year term could be written so a justice keeps a federal judgeship after rotating off the high court. That dispute is why term limits, despite broad popularity, are harder to enact than a number change.
Seven Times Congress Resized the Court
Congress changed the number of justices seven times before locking it at nine. The count climbed for new circuits, dropped to deny a president appointments, and twice moved for raw political advantage. It started at six in 1789 and grew to seven in 1807, nine in 1837, and ten in 1863. In 1866 it was set to shrink to seven to block Andrew Johnson, and in 1869 it settled at nine.
- Set at six justices The Judiciary Act of 1789 builds the first federal courts and seats six justices.
- Cut to five justices Lame-duck Federalists shrink the Court to deny Jefferson an appointment. It took effect only at the next vacancy.
- Restored to six justices Jefferson's Congress repeals the cut before any seat opened, so the bench never actually shrank.
- Up to seven justices A seventh circuit covering Kentucky, Tennessee, and Ohio adds a seventh justice.
- Up to nine justices Two new western circuits under Andrew Jackson push the Court to nine.
- Up to ten justices A tenth Civil War circuit adds a tenth justice as the Union fights the war.
- Set to shrink to seven Reconstruction Republicans bar new seats to keep Andrew Johnson from filling them.
- Fixed at nine justices The Judiciary Act of 1869 settles the number at nine. It has not changed since.
Sources: Brennan Center, Federal Judicial Center, Constitution Annotated.
Justices on the Supreme Court, 1789-1869: 1789: Set at six justices (The Judiciary Act of 1789 builds the first federal courts and seats six justices.). 1801: Cut to five justices (Lame-duck Federalists shrink the Court to deny Jefferson an appointment. It took effect only at the next vacancy.). 1802: Restored to six justices (Jefferson's Congress repeals the cut before any seat opened, so the bench never actually shrank.). 1807: Up to seven justices (A seventh circuit covering Kentucky, Tennessee, and Ohio adds a seventh justice.). 1837: Up to nine justices (Two new western circuits under Andrew Jackson push the Court to nine.). 1863: Up to ten justices (A tenth Civil War circuit adds a tenth justice as the Union fights the war.). 1866: Set to shrink to seven (Reconstruction Republicans bar new seats to keep Andrew Johnson from filling them.). 1869: Fixed at nine justices (The Judiciary Act of 1869 settles the number at nine. It has not changed since.).
1789: The Judiciary Act of 1789 created the federal court system and set the Supreme Court at six justices, two for each of the three original circuits.
1801 and 1802: Federalists who lost the 1800 election passed a lame-duck law shrinking the Court to five, timed to take effect at the next vacancy so President Jefferson could not appoint anyone. Jefferson’s new majority repealed the law in 1802 before any seat opened. The bench never actually fell to five, which is why some historians count six size changes and others count eight.
1807: Congress added a seventh circuit for Kentucky, Tennessee, and Ohio and a seventh justice to ride it. Justices in this era did double duty, hearing cases on the road in addition to sitting in Washington.
1837: Two new circuits covering the expanding West brought the Court to nine under President Andrew Jackson, who got to fill the new seats.
1863: A tenth circuit on the West Coast added a tenth justice during the Civil War, helping ensure the Court would not block the Union war effort.
1866: Reconstruction Republicans, at odds with President Andrew Johnson, passed a law shrinking the Court by attrition so Johnson could not fill any vacancies. The number was on its way down to seven.
1869: With Johnson gone, the Judiciary Act of 1869 set the Court at nine, one justice per circuit at the time. That number has held for more than 150 years.
FDR’s 1937 Plan Failed in His Own Party
The last serious push to enlarge the Court came from Franklin Roosevelt, and it collapsed. After the Court struck down several New Deal laws, Roosevelt announced the Judicial Procedures Reform Bill on February 5, 1937. It would have let him appoint one new justice for each sitting justice over 70 who did not retire, up to six new seats, which could have grown the Court to fifteen.
Roosevelt framed it as help for an overworked bench, and critics in both parties saw a power grab. On March 29, 1937, the Court upheld a state minimum-wage law in West Coast Hotel v. Parrish, and the case for the plan faded, a shift later nicknamed “the switch in time that saved nine.” On June 14, the Senate Judiciary Committee, run by Roosevelt’s own Democrats, called the plan “a needless, futile, and utterly dangerous abandonment of constitutional principle.”
That vote is why “did FDR pack the Court” has a clean answer: he tried and failed. Both sides still cite the episode, and it is the reason the number nine carries so much weight.
Where Court Reform Stands in 2026
None of the Supreme Court bills in the current Congress has had a committee vote. The ideas with the most sponsors are an ethics code and term limits, not more seats.
Status as of September 24, 2026 (bill records from GovInfo)
- Adding seats: no bill in the current Congress. The Judiciary Act of 2023, which would have grown the Court to 13, was introduced May 16, 2023 by Senators Ed Markey and Elizabeth Warren and Representatives Hank Johnson and Jerry Nadler, and died without a vote.
- Term limits: the TERM Act, H.R. 3544, would set 18-year terms. Hank Johnson introduced it May 21, 2025, with 86 cosponsors, all Democrats. A separate plan from Ro Khanna, H.R. 1074, has 8.
- Ethics code: the Supreme Court Ethics, Recusal, and Transparency Act, S. 1814 and H.R. 3513, was introduced May 20, 2025 with 35 Senate and 94 House cosponsors, all Democrats or independents. The 2023 version cleared the Senate Judiciary Committee in July 2023 and never got a floor vote.
- Locking in nine: Senator Ted Cruz’s constitutional amendment, S.J.Res. 16, was introduced February 6, 2025 with 22 Republican cosponsors and has not moved.
President Biden proposed a package in July 2024 built on 18-year term limits and a binding ethics code rather than more seats, and that plan ended when he left office in January 2025. The Court adopted its own code of conduct in November 2023, but it has no enforcement mechanism and no way for the public to file a complaint.
The loudest 2026 voice for expansion is not a legislator. Democratic strategist James Carville argued on his April 2026 podcast that if Democrats win the presidency and both chambers, they should add D.C. and Puerto Rico as states and expand the Court to thirteen. No bill backs the comment. Our brief on adding D.C. and Puerto Rico and expanding the Court to 13 lays out what each side argues.
Five Ways to Change the Supreme Court
Expansion is one item on a longer menu, and the options differ sharply on how hard they are to pass and what they risk. Some need only a law. Term limits may need a constitutional amendment.
Supreme Court reform proposals compared
Source: Brennan Center; Brookings; Harvard Law Review; GovInfo bill records, September 2026
The split that matters is between size and structure. Adding seats changes who is on the Court today. Term limits and an ethics code change how the Court works for every future president, which is why they draw support across party lines while expansion does not.
What the Polling Shows on Court Reform
Term limits win a majority in every party. Adding seats splits the country along party lines.
- Favor term limits
- Oppose
Marquette Law School national poll, September 2-9, 2026, 1,023 adults, margin of error 3.3 points.
Expansion draws a different pattern. A small national majority favors adding justices, but most Republicans oppose it, so the idea lacks the cross-party base that term limits have.
- Favor adding justices
- Oppose
Marquette Law School national poll, September 2-9, 2026. Respondents chose favor or oppose, with no 'not sure' option.
How to read these numbers. Marquette asks people to pick favor or oppose, so every answer lands on one side. A poll that offers a “not sure” option will put fewer people on each side, so compare the gap between the two reforms rather than any single number. In the same September poll, 43% approved of the Court, down from 47% in July.
Not Every Court Reform Is Court Packing
The phrase “court packing” gets stretched to cover any change to the Court, which muddies the debate. The proposals differ in what they do and in how the law treats them.
- Adding seats is not the same as term limits. Expansion changes the head count by law. Term limits change how long a justice serves and may require a constitutional amendment. They are different tools with different bars to clear.
- An ethics code is not packing at all. Binding recusal and gift rules change how justices behave, not who they are or how many sit. It has the lowest constitutional hurdle of any reform on the menu.
- Resizing the Court is not unconstitutional. Congress has done it seven times, and the Constitution sets no number. Calling expansion illegal is wrong, even if calling it unwise is a fair argument.
- Thirteen is a proposal, not a requirement. The “one justice per circuit” math lands on thirteen because there are thirteen federal circuits, but that is an argument advocates make, not a constitutional rule. Congress could pick any number.
- The motive is what earns the “packing” label. Adding seats to relieve a genuine caseload is expansion. Adding seats to flip the next set of rulings is what critics mean by packing. The act can be the same, and the reason is the dividing line.
Frequently Asked Questions
Can a president pack the Court alone? No. A president can only nominate justices to seats that exist. Adding seats takes a law passed by both chambers of Congress, which the president then signs.
What happens if one party expands the Court? The leading objection is a retaliation spiral. If one party adds seats while in power, the other can do the same when it returns, ratcheting the Court larger each cycle and, critics argue, draining its authority. Supporters counter that the Court’s legitimacy is already strained and that expansion answers the 2016 and 2020 confirmation fights.
Can Congress remove a justice instead? Only by impeachment. The House impeaches by majority vote, and the Senate needs two-thirds to convict and remove. The only justice ever impeached, Samuel Chase in 1804, was acquitted by the Senate in 1805. The impeachment explainer covers how the process works.
What You Can Do
- If you want term limits, ask your House member to cosponsor the TERM Act, H.R. 3544. All 86 cosponsors are Democrats. A Republican cosponsor would do more for the bill than another Democrat, so if your representative is a Republican, say that 71% of Republicans favor term limits.
- If you live in a state that elects its supreme court, vote in those races. In 2026, voters in 32 states are filling supreme court seats that decide redistricting, abortion access, and voting rules. These races draw low turnout and shape the courts closest to your daily life.
- If you are still deciding where you stand, read both cases at the source. The Brennan Center’s reform analysis lays out the full menu, and our brief on adding states and expanding the Court to 13 sets out each side’s argument.
- If ethics is your priority, ask your members of Congress to cosponsor the Supreme Court Ethics, Recusal, and Transparency Act. It would make the Court’s code binding and stop justices from ruling on their own conflicts. Use the letter and call script below.