# A question about the law of packing the court . **URL:** \ **Category:** Politics & Elections\ **Created:** [September 21, 2020, 3:15am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110 "2020-09-21T03:15:06Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [September 21, 2020, 3:15am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/1 "2020-09-21T03:15:06Z")
Here’s a question that comes up due to an article in Raw Story that summarizes an article in The Daily Beast. It says that the number nine (of SCOTUS justices) in neither in the Constitution nor in the law. What does that mean? There is no law ever passed by Congress specifying how many justices there should be? So, the article suggests, if Biden wants to add additional justices, all he needs to do is nominate one or several, and if the Senate confirms, then the court is expanded. That’s all there is to it? No legislation needs to be passed be Congress to this effect? > **[Here are 3 ways McConnell's drive to replace Ginsburg could be derailed](https://www.rawstory.com/2020/09/here-are-3-ways-mcconnells-drive-to-replace-ginsburg-could-be-derailed/)** > > Reacting to the announcement that Supreme Court Justice Ruth Bader Ginsburg passed away on late Friday, Daily Beast columnist Michael Tomasky warned that Senate Majority Leader Mitch McConnell (R-KY) was likely up late plotting ramming through her... > [@](#): > > As Tomasky put it, “[. . .] the Democrats have a card to play here, if Joe Biden will play it. The number nine (of Supreme Court justices) is neither in the Constitution nor law. Biden, and Chuck Schumer, can say: If you fill this seat now, if Biden wins, we’re expanding the Court to 11 or 13, and your majority is dead. And they should be ready to do it.” ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [September 21, 2020, 3:20am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/2 "2020-09-21T03:20:59Z")
The current number of justices was set by [The Judiciary Act of 1869](https://en.wikipedia.org/wiki/Judiciary_Act_of_1869). The number of justices can be changed by passing a new Act. There have previously been other numbers than nine justices on the court, greater _and_ less, so it’s not unheard of to add or remove from the number of justices. ---
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [September 21, 2020, 3:21am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/3 "2020-09-21T03:21:06Z")
Here’s another, separate, question based on something I saw in some other article today: I saw somewhere that confirmed judges (including SCOTUS justices?), although assured of a lifetime tenure, are not assured of a lifetime tenure in any particular seat. (I don’t have the cite handy, and I don’t think you need it, because the above remark is the entirety of what the article said about that. No additional detail or clarification given.) But the implication seemed to be that a judge (or SCOTUS justice?) could be moved around from one seat to another (even from one court to another?) Again, no further details given on what the mechanism might be for doing that. Has anyone here ever heard of any such thing? ---
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [September 21, 2020, 3:22am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/4 "2020-09-21T03:22:42Z")
Aha, squeegee, so you’re saying that the number of justices IS specified in a law passed by Congress (contrary to what that article claims), and that enlarging the court would require a new act of Congress to enable it. ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [September 21, 2020, 3:37am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/5 "2020-09-21T03:37:51Z")
Bingo. Though the article doesn’t say otherwise really. Well, this is just wrong: " The number nine (of Supreme Court justices) is neither in the Constitution nor law." It is the law. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [September 21, 2020, 6:18am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/6 "2020-09-21T06:18:36Z")
A law that has never been challenged. Can one branch of government say how big another branch of government should be? Seems problematic. ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [September 21, 2020, 6:22am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/7 "2020-09-21T06:22:52Z")
Congress already funds the SC, this doesn’t seem that different re separation of powers. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [September 21, 2020, 6:25am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/8 "2020-09-21T06:25:22Z")
Are you saying the legislative branch can financially strangle the other two branches of government? Aren’t the three branches “separate but equal”? ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [September 21, 2020, 6:37am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/9 "2020-09-21T06:37:51Z")
> [@Whack-a-Mole](#): > > Are you saying the legislative branch can financially strangle the other two branches of government? Yes. You recall there were multiple Fed shutdowns because congress sat on their hands. Right? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [September 21, 2020, 6:45am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/10 "2020-09-21T06:45:31Z")
That shut down the whole government. It was not one branch targeting another branch to squeeze them out of existence. Big difference. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [September 21, 2020, 9:32am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/11 "2020-09-21T09:32:41Z")
Congress could mandate 192 Judges for the SC. It could also drastically reduce the capacity for confirmation hearings by making a rule that for instance if the Senate hasn’t acted on a nomination with 3 days it is deemed to be a confirmation. The restraints are political not legal. ---
**Author:** ![flurb](https://avatars.discourse-cdn.com/v4/letter/f/51bf81/32.png) [@flurb](https://boards.straightdope.com/u/flurb)\ **Post date:** [September 21, 2020, 1:35pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/12 "2020-09-21T13:35:45Z")
> [@Whack-a-Mole](#): > > Aren’t the three branches “separate but equal”? No where in the Constitution does it say that the three branches are “separate but equal”. In the debates around adopting the Constitution, the Founders assumed that Congress would be the preeminent organ of Government, with the Presidency in second and the judiciary a distant third. What they did adhere to was a “separation of powers” doctrine that each branch should have clearly defined authorities and responsibilities. And as part of that, they deliberately gave each branch specific authorities to confront or override the actions of another – i.e. the “checks and balances” you heard about in grade school. Congress got the “power of the purse” to fund or not fund the other branches. But even that’s constrained – e.g. judges’ salaries may not be decreased during their time in office. So Congress could, for example, refuse to pay to keep the lights on at the Supreme Court Building, but they could not keep the Justices from meeting at the Olive Garden to hear cases. > [@Whack-a-Mole](#): > > Can one branch of government say how big another branch of government should be? The entire structure of the federal judiciary – i.e. district courts and appellate courts – was created through legislation. Constitutionally, there must be a Supreme Court, but the number and structure of inferior courts is explicitly left up to the legislative process. ---
**Author:** ![Bijou\_Drains](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bijou_drains/32/2814_2.png) [@Bijou\_Drains](https://boards.straightdope.com/u/Bijou_Drains)\ **Post date:** [September 21, 2020, 1:47pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/13 "2020-09-21T13:47:25Z")
the Supreme court basically gave itself the power to overturn laws in the case Marbury V Madison in 1803. > **[Marbury v. Madison](https://en.wikipedia.org/wiki/Marbury_v._Madison)** > > Pages for logged out editors learn more > > > > Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution of the United States. Decided in 1803, Marbury is regarded as the single most important decision in American constitutional law. The Court's landmark decision establis... ---
**Author:** ![carnivorousplant](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnivorousplant/32/3563_2.png) [@carnivorousplant](https://boards.straightdope.com/u/carnivorousplant)\ **Post date:** [September 21, 2020, 1:52pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/14 "2020-09-21T13:52:10Z")
If Congress reduced the size of the Supreme Court to four, do that kick some Judges out? ---
**Author:** ![Munch](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/munch/32/5281_2.png) [@Munch](https://boards.straightdope.com/u/Munch)\ **Post date:** [September 21, 2020, 2:01pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/15 "2020-09-21T14:01:31Z")
In the past, reducing the size of the court was only done upon retirement or death. ---
**Author:** ![carnivorousplant](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnivorousplant/32/3563_2.png) [@carnivorousplant](https://boards.straightdope.com/u/carnivorousplant)\ **Post date:** [September 21, 2020, 2:04pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/16 "2020-09-21T14:04:34Z")
In the past, the Senate held hearings for candidates. 🙂 ---
**Author:** ![Munch](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/munch/32/5281_2.png) [@Munch](https://boards.straightdope.com/u/Munch)\ **Post date:** [September 21, 2020, 2:07pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/17 "2020-09-21T14:07:32Z")
Well…sure. I’d be curious about the process as well. My guess is that the only way to remove a sitting member of SCOTUS would be via impeachment, and that seems unlikely. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [September 21, 2020, 2:09pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/18 "2020-09-21T14:09:16Z")
If you are looking for tradition and decorum in government, I do believe the Library Of Congress has a dictionary available. ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [September 21, 2020, 5:19pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/19 "2020-09-21T17:19:07Z")
Instead of arguing about this, you might wish to read what the constitution actually says: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” That’s all it says. The numbers are left to congress and can be changed at any time. But no expansion (or contraction) can take place without an act of congress. Nor can a judge be dismissed except for bad behaviour, presumably through impeachment. Nice to use facts when arguing. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [September 21, 2020, 6:37pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/20 "2020-09-21T18:37:52Z")
Right, the [Judiciary Act of 1801, 2 Stat. 89](https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/2/STATUTE-2-Pg89.pdf) set the precedent on this. The reduced Supreme Court size would have been effective on the next vacancy. ~Max [Next page](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110.md?page=2)