Who Actually Started Packing the Supreme Court?

"Court packing" is a phrase that ends conversations. One side hears a partisan power grab, the other hears overdue payback, and everyone retreats to their corner. This week I tried to have the conversation anyway, start to finish, and the honest version begins earlier than most coverage admits.

The premise most coverage skips

You do not need new seats to pack a court if you control who fills the seats you already have. Consider the sequence. February 2016: Justice Scalia dies, and Senate leadership refuses to consider Merrick Garland, President Obama's nominee, for the rest of the year. The stated principle, that voters should decide in an election year, had no real historical precedent; nine election year vacancies since the Court stabilized at nine members had all been filled. Senator Lindsey Graham was so confident in the new rule that he said "use my words against me" if a Republican president faced the same situation. September 2020: Justice Ginsburg dies weeks before the election, the rule is abandoned, and Amy Coney Barrett is confirmed roughly a week before Election Day, after tens of millions of Americans had already voted.

The number of justices never moved. The composition of the Court moved dramatically. If we define packing as only the act of adding seats, we define that maneuver out of the conversation entirely, and we hand the rhetorical high ground to the side that already reshaped the bench through procedure. That is the missed nuance, and it reframes everything downstream.

The number nine was always politics

The Constitution never fixes the Court's size. Article III creates the Court and leaves the rest to Congress, which has changed the number seven times. Six justices in 1789, matched to the three original circuits. Five in 1801, when lame duck Federalists shrank the Court to deny Thomas Jefferson an appointment. Back to six when Jefferson's Congress repealed that. Seven in 1807. Nine in 1837 as the country expanded west. Ten in 1863, when Lincoln added a seat partly to secure an anti slavery, pro Union majority. Seven in 1866, when Congress cut the Court to deny Andrew Johnson any appointments. Nine again in 1869, where it has stayed.

Notice the pattern: every single change was driven by politics, sometimes cynical, sometimes arguably moral, never neutral. "Nine is tradition" is accurate. "Nine is constitutional design" is not.

FDR and the warning label

The most famous expansion attempt is also the strongest cautionary tale. In 1937, Franklin Roosevelt, fresh off a landslide and furious that the Court kept striking down New Deal legislation, proposed adding up to six justices, one for each sitting justice over seventy who declined to retire. He sold it as judicial efficiency. Nobody believed him. The plan died 70 to 20 in a Senate his own party controlled, even as the Court, in the famous switch in time, began upholding New Deal laws while the bill was still dying. FDR lost the battle and won the war, but the lesson stands: even a popular president with a commanding majority could not sell a Court grab to the public. Court approval sits near record lows today, which strengthens the case for reform generally, but the FDR episode suggests voters can distrust the grab as much as the institution being grabbed.

What expansion would actually take

Because the size is statutory, expansion needs only an ordinary bill: House, Senate, presidential signature. In practice, it needs 60 Senate votes to survive a filibuster, which no party has, so the filibuster itself has to be ended or carved out first, a separate institutional fight that splits even the majority party. Budget reconciliation is unavailable because Court structure is not a fiscal matter. The most cited vehicle, the Judiciary Act, would move the Court from nine to thirteen justices, one per federal appeals circuit, echoing the founding era logic when justices physically rode their circuits. Congress dismantled circuit riding over a century ago, so the strongest advocates do not actually rest on circuit math. Their real argument is that expansion corrects a rigged bench: a president who lost the popular vote seated three justices, and the Garland seat was taken outright.

Why I would start somewhere else

Expansion is legal, and after 2016 it is defensible. It is also loud, unpopular, procedurally stacked, and it invites the exact tit for tat spiral the FDR era barely avoided: add four, lose an election, watch the other side add four more. The reforms with genuine cross party support are quieter and stronger. Eighteen year staggered term limits, with each president seating a justice every two years and outgoing justices rotating to senior status, draw supermajority support across the spectrum: 85 percent of Democrats, 76 percent of independents, and 67 percent of Republicans in PRRI's polling, with Marquette finding 73 percent of Republicans in favor. The idea's pedigree is bipartisan too, co-authored by Federalist Society co-founder Steven Calabresi with liberal scholar Akhil Amar, and echoed decades ago by a young John Roberts. Forty nine of fifty states already limit their high court judges in some form. Pair that with a binding, enforceable ethics code, which becomes hard to argue against when one justice has disclosed gifts valued in the millions over two decades and the Court's self written 2023 code contains no enforcement mechanism at all.

The bottom line

If the goal is a Court the public trusts again, rather than a Court one side controls for a single cycle, the order matters. Term limits and ethics first, because they can actually pass and actually build a coalition. Expansion second, if at all, and only with airtight messaging, appointments staggered so both parties seat justices, and the final number locked into the Constitution so the country is not re-fighting this every decade.

Steel manned in both directions, receipts throughout. The full episode is here: https://podcasts.apple.com/us/podcast/do-i-support-supreme-court-packing-and-who-actually/id1626987640?i=1000775168364