Court expansion is necessary for equal justice

Written by Lindsey Spencer

In the winter of 1937, President Franklin D. Roosevelt proposed an innovative plan to the U.S. Congress: to expand the size of the U.S. Supreme Court. Although FDR is primarily known today for his progressive New Deal programs, these policies wouldn’t have been possible without the consent of the nine Supreme Court justices. Such legislative measures were unprecedented at the time of his presidency, from his commercial regulations to his protections of laborers. As such, the Supreme Court refused to recognize many of them as constitutional, halting Roosevelt’s mission in its tracks. 

In order to combat these judicial obstacles, the president offered the following solution: the president would be able to appoint one justice for each sitting one who had not retired by the age of 70. His hope was that, with the growing age of Supreme Court Justices, additional members would assist in the sheer number of cases appearing before them. However, as a progressive president burdened by a conservative court, his true aim was certainly a more political one; with more justices appointed by Roosevelt himself, the liberals would outweigh the conservatives and likely side with him.

Although the plan failed, the number of people in favor of “court packing” has only grown. In the summer of 2024, Rep. Adam Schiff and Sen. Ed Markey introduced the Judiciary Act, which would add four additional seats to the Supreme Court. These legislators’ goals are political in nature, decidedly in favor of “flipping” the conservative majority of its tenants and restoring a nonpartisan, trustworthy balance. The United States is growing increasingly at odds with the Supreme Court, especially after a slew of conservative decisions in recent years. It is high time that Roosevelt’s vision be brought back to life and for Congress to expand the U.S. Supreme Court.

The U.S. Constitution makes little mention of the Supreme Court. In Article III, Section 1, the framers assert that the courts will hold all “judicial power,” and that they “shall hold their Offices during good Behavior.” In 1789, the Judiciary Act gave Congress the authority to regulate federal courts, and put six justices on the bench. Throughout the years, additional pieces of legislation would change the size and scope of the Court, but the principles of checks and balances continued to ring true. Nowhere in the Constitution does it state that the Supreme Court must be nine justices strong, nor does it state that this informal precedent must stand. 

Packing the Supreme Court would not only fulfill Roosevelt’s ideal of passing a plethora of legislation, but it would also promote the equal justice principles espoused by the Constitution. U.S. Supreme Court justices are appointed and then approved by the president and the U.S. Senate respectively, which correspondingly makes them servants of the American voter. In the modern era, more often than not Supreme Court justices are making political or partisan decisions, a behavior reserved primarily for elected officials. If the judges on the Supreme Court are behaving in a political way, they should be subject to political whims.

Like the other branches of government, the Supreme Court ought to be willed by and for the people. If decisions were to be made through the consent of a supermajority of justices, Supreme Court rulings would better reflect popular opinion. This conception of the Court is more important than ever today, especially as the principles of the Constitution and the Bill of Rights come under greater scrutiny and fear of institutional collapse is imminent. 

However, the Supreme Court is intentionally different in terms of its nomination protocol and administrative features. This distinction is crucial for its function: if the American public were to elect Supreme Court justices directly, their commitment to upholding the Constitution above all else would be questionable. This mechanism would also apply a potential partisan label to justices, which could taint their independence from the whims of the two-party system. There is certainly merit to these fears. An act of the president or Congress that adjusts the configuration and contents of the Court could be perceived as a violation of its independence. 

Formal precedent such as separation of powers considers court packing to be an overstep, but other tenets of government view the situation more progressively. It is well within the constitutional authority of the U.S. president and the chambers of Congress to either directly or indirectly influence the mechanisms of the judiciary. This would include, for example, the addition of seats to the Supreme Court’s bench or the institution of a supermajority requirement. Just as the president’s executive orders and Congress’ reams of policy impact the American people, so do — as we clearly know — the decisions of the U.S. Supreme Court. As such, the Court ought to be subject to the authority of its two partner branches.

Service to the people and service to the principles of justice, law, and order shouldn’t be distinct from one another,  they should instead be indistinguishable. Packing the United States Supreme Court would reinvigorate the intentions of the FDR administration when it originally proposed the plan: to create a judicial system that values consistency, that promotes equality, and that acts with the intentions of the American people in mind. 

As dissatisfaction with the Supreme Court grows, more and more Americans are in favor of expansion. With public approval on the side of institutional change, the ball is in the court of U.S. lawmakers. Getting the new Judiciary Act through Congress will certainly be a difficult task for the current legislature, which approaches a decisive election for the majority of both House and Senate membership. Public acceptance of court packing is starkly partisan, and the subject grows even more tenuous as the Court continues to make top headlines. Despite the fact that the future of Supreme Court expansion is unclear, what is clear is that change is necessary. 

The Founders of the United States and the authors of its Constitution said little about the size and scope of the government’s new courts, from the appellate level to that representing the nation. It is thus not only constitutional but imperative that the current administration — whether it be the executive or legislative branch — take immediate action to remedy the rising distrust and anger laid against the U.S. Supreme Court. The court system in our country is meant to preserve the contents of the Constitution, which place utmost value upon life, liberty, and equality. However, with an unintentionally yet consciously partisan composition and a growing tendency to side against the wants of the American people, it is integral to the preservation of the early American vision and the future of our country that the court be expanded.