# 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:** 2
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [September 21, 2020, 8:07pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/21 "2020-09-21T20:07:51Z")
> [@Hari\_Seldon](#): > > 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 with an act of congress. This is correct, although the Constitution does require that the Supreme Court have at least a Chief Justice. The number of associate justices is set by statute. All organs of government, in the executive and judicial branches, are established and funded by Congress. They don’t just magically appear and start doing things. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [September 21, 2020, 8:42pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/22 "2020-09-21T20:42:17Z")
> [@AK84](#): > > 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. Furthermore, the constitution says that the president shall appoint judges with the “advice and consent” of the Senate. Nowhere does it say that there must be confirmation hearings or even a confirmation vote. The Republicans have pushed the boundaries of so many norms that sooner or later a president will say that “I nominated so-and-so on the advice of Senator Smith and the Senate’s inaction on my nomination indicates that it has consented,” and will go ahead and try to seat a federal judge or justice. Every other norm has gone out the window, so I don’t see why this won’t. ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [September 21, 2020, 8:45pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/23 "2020-09-21T20:45:58Z")
> [@Hari\_Seldon](#): > > 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. I think you meant “without an act of congress”. ---
**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, 8:46pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/24 "2020-09-21T20:46:39Z")
Yeah, I fixed it. ---
**Author:** ![GreaterZamboni](https://avatars.discourse-cdn.com/v4/letter/g/49beb7/32.png) [@GreaterZamboni](https://boards.straightdope.com/u/GreaterZamboni)\ **Post date:** [September 21, 2020, 9:12pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/25 "2020-09-21T21:12:13Z")
I would hope that Congress would be smart enough to put an odd number of Justices on the Supreme Court to reduce the number of deadlocks, so 192 new justices is a bad number. 191, ok, 193, ok too. ---
**Author:** ![Aji\_de\_Gallina](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aji_de_gallina/32/260_2.png) [@Aji\_de\_Gallina](https://boards.straightdope.com/u/Aji_de_Gallina)\ **Post date:** [September 21, 2020, 9:51pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/26 "2020-09-21T21:51:30Z")
So, Trump could do the same and pre-pack it with 10 more nominees until it all becomes more of a joke. It’s a can of worms that should remain firmly closed. “Destroy SCOTUS to own the pubs” is a bad move. ---
**Author:** ![jacobsta811](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jacobsta811/32/2893_2.png) [@jacobsta811](https://boards.straightdope.com/u/jacobsta811)\ **Post date:** [September 21, 2020, 10:10pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/27 "2020-09-21T22:10:39Z")
Trump can’t pack right now - you’d have to control all 3 branches of congress, not just two (you need a full bill not just something from the senate) ---
**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, 10:28pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/28 "2020-09-21T22:28:24Z")
Both branches. There is no third branch of Congress, unless you are erroneously referring to the President’s veto power as a branch of Congress. ~Max ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [September 21, 2020, 10:40pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/29 "2020-09-21T22:40:26Z")
So what we should do is pack the court just enough to overcome Trump’s and McConnel’s damage, and then try to push through a constitutional amendment to set an actual legally-binding procedure to stop it from being a joke. ---
**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, 11:13pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/30 "2020-09-21T23:13:57Z")
Congress could just as easily pass a law reducing the court size to eight every other January, effective upon the next vacancy, then to nine on the alternate January. ~Max ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [September 22, 2020, 7:09am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/31 "2020-09-22T07:09:40Z")
The British Parliament is strictly speaking the “King/Queen in Parliament” ie The House of Commons, House of Lords and the Queen and the US Congress is expressly modelled on that. I have seen some American articles which include the President as part of the Congress for its law making powers but you are right the concept as such does not seem to have caught hold in the United States Constitutional discussions. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [September 22, 2020, 7:11am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/32 "2020-09-22T07:11:49Z")
> [@Chronos](#): > > So what we should do is pack the court just enough to overcome Trump’s and McConnel’s damage, and then try to push through a constitutional amendment to set an actual legally-binding procedure to stop it from being a joke. Mate, if you have enough votes (2/3rd of both Houses of Congress and 3/4th of Statehouse) to "push through a constitutional amendment), then Trump nd McConnell are no threats anyway. ---
**Author:** ![octopus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/octopus/32/3716_2.png) [@octopus](https://boards.straightdope.com/u/octopus)\ **Post date:** [September 22, 2020, 8:24am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/33 "2020-09-22T08:24:45Z")
That’s 3/4 of the states. That’s very exceedingly unlikely. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [September 22, 2020, 10:44am UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/34 "2020-09-22T10:44:44Z")
I think that a successful Democratic court-packing scheme, which the Republicans couldn’t otherwise fix until the next time they control both Houses and the White House, would be enough to convince them that the system was broken and needed fixing. Democrats would agree to it because it makes sense and makes government work better, and Republicans would agree to it because it would (in the short term, at least) hurt Democrats. ---
**Author:** ![jacobsta811](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jacobsta811/32/2893_2.png) [@jacobsta811](https://boards.straightdope.com/u/jacobsta811)\ **Post date:** [September 22, 2020, 12:29pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/35 "2020-09-22T12:29:48Z")
Right, badly stated, what I mean is that you’d have to control all 3 of the house, senate, and presidency to court pack, and the democrats currently control the house, so Trump cannot. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [September 22, 2020, 7:01pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/36 "2020-09-22T19:01:24Z")
What if the Congress passes a law, and the President signs, it, increasing the court to 15 members…and the court overrules it? ---
**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 22, 2020, 7:24pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/37 "2020-09-22T19:24:03Z")
FDR put 9 guys on the court from 1937 to 1943. And he also tried to pack the court but obviously it did not work. Carter never got a pick but Ford got one despite his short term in office. ---
**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 22, 2020, 7:38pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/38 "2020-09-22T19:38:18Z")
Who could possibly have standing to bring it to the court? And if four or six new justices showed up and started voting, how would they stop them? ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [September 22, 2020, 8:07pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/39 "2020-09-22T20:07:25Z")
> [@Trinopus](#): > > What if the Congress passes a law, and the President signs, it, increasing the court to 15 members…and the court overrules it? Who would even have standing to challenge the new law? And under what theory would the court overrule it? Congress had fiddled with the size of the Supreme Court and lower courts regularly with no issue. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [September 22, 2020, 9:21pm UTC](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110/40 "2020-09-22T21:21:48Z")
> [@friedo](#): > > Who would even have standing to challenge the new law? And under what theory would the court overrule it? Well, that’s the thing: a runaway court is no better than a runaway Senate or out-of-control President. What if they precipitate a constitutional crisis? What if Trump runs for a 3rd term without an amendment permitting it? What if they (you know, “they”) simply stop recognizing the document at all? [Previous page](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110.md?page=1) [Next page](https://boards.straightdope.com/t/a-question-about-the-law-of-packing-the-court/921110.md?page=3)