The US Constitution is, in some places, very specific. For instance, if you happened to be wondering which circumstances would allow for a soldier to live inside your house, you would consult the constitution, not statutory law. However, the constitution is decidedly sparse in its passages about the judiciary system. Most importantly for our purposes, it does not mandate a specific amount of justices to serve on the US Supreme Court. This is not entirely unusual---the constitutions of Australia and Germany don’t mandate the amount of justices on their highest courts, either.
Consequently, the number of justices on America’s highest court has varied throughout its history. Initially, the court had just six justices, before gradually expanding until it had ten members by the end of the American Civil War. The court’s current size of nine was not set until the Judiciary Act of 1869. In 1937, FDR sought to increase the size of the court to fifteen, as the existing majority on the court kept blocking provisions of the New Deal. However, many members of Congress from Roosevelt’s own party did not agree with his plan, and it turned into a political embarrassment for Roosevelt.
More recently, in 2019, Pete Buttigieg made expanding the US Supreme Court a key feature of the early stages of his presidential campaign. He proposed a system where five justices would be explicitly associated with the Republican Party, and five more with the Democratic Party. These ten justices would then select five additional justices meant to be apolitical, resulting in a total of fifteen justices. However, given that the US Constitution designates the US President to appoint the justices, this system would possibly require a constitutional amendment, though some experts do not think this necessary. While some other Democrats agreed that expanding the court was a good idea, Joe Biden and Bernie Sanders both dissented during the primaries.
However, following the death of Ruth Bader Ginsburg, Joe Biden has stopped short of disavowing court packing schemes, saying that the issue is “a legitimate question.” If the Democrats did want to expand the court after hypothetical success in the upcoming November elections, it would likely require getting rid of the US Senate filibuster in order to change the law to nullify the relevant aspects of the Judiciary Act of 1869. Biden has been somewhat reluctant to eliminate the filibuster, but he has said that “if there’s no other way to move, other than getting rid of the filibuster, that’s what we’ll do.”
Currently, court expansion is not a very popular idea, with it being opposed nationwide by 54-32%. However, it is possible that these numbers could shift if Trump nominee Amy Coney Barrett replaces RBG. Only 38% of Americans want the vacancy filled before the next presidential inauguration (compared to 57% who don’t), and people prefer Biden picking the next justice to Trump by 50-42%.
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