Why History Shows 'Court Packing' Isn't Extreme

At the presidential and vice presidential debates, Donald Trump and Mike Pence asked their opponents the same question: Will you pack the courts?

The symmetry of their approach shows they believe a focus on "court packing" could turn their ailing campaign around. And they got a quick assist from media outlets who began hammering the Biden campaign about the issue.

But "court packing" — as both a phrase and a historical precedent — obscures more than it reveals about the current debate over the size of the Supreme Court. That's because the parallel to President Franklin Roosevelt's efforts to change the court's size don't fit the current situation, and the broader history of court expansion bolsters the case for expanding the court now.

Expansion of the court rests in the hands of Congress, a right it has exercised several times in the nation's history. Rather than being "illicit" or "tyranny," as conservative critics have charged, it is an ordinary power of Congress granted by the Constitution. Over the course of the 19th century, the court fluctuated from five to 10 members, ultimately settling at nine. In many cases, the changes reflected fluctuations in the number of federal court districts. When districts were added or removed, the number of seats on the court changed with them. (For the record, there are currently 13 federal districts.)

Mixed in with these relatively neutral changes were more politically motivated ones. In fact, the first change to the Supreme Court came as part of the "midnight judges" scandal of 1801, when Federalists doubled the number of district judges and shrank the size of the Supreme Court from six to five after they lost the election of 1800, hoping to install as many as their allies as possible before Thomas Jefferson became president.

Because this was an act of Congress, Jefferson's legislative allies were able to simply repeal the law in 1802, bumping the Supreme Court back up to six seats.