# Court Packing Limits **URL:** \ **Category:** Factual Questions\ **Created:** [July 3, 2018, 9:59pm UTC](https://boards.straightdope.com/t/court-packing-limits/817253 "2018-07-03T21:59:49Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Delicious](https://avatars.discourse-cdn.com/v4/letter/d/dbc845/32.png) [@Delicious](https://boards.straightdope.com/u/Delicious)\ **Post date:** [July 3, 2018, 9:59pm UTC](https://boards.straightdope.com/t/court-packing-limits/817253/1 "2018-07-03T21:59:49Z")
Since SCOTUS whatnots have been discussed a lot recently, I’ve heard several mentions of court packing as a potential tactic to be used by either side. As I understand it, there’s not many rules regarding the makeup of the SCOTUS so is there a limit to how big it could theoretically get? Do all justices have to be present for every case? So if you have 100 of them, one’s likely to be ill at any particular time. Do they have to work in a particular building? So fire codes may prevent certain numbers. Or could there theoretically be a 1000 member court? ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [July 3, 2018, 10:11pm UTC](https://boards.straightdope.com/t/court-packing-limits/817253/2 "2018-07-03T22:11:15Z")
The only thing that the Constitution has to say about the makeup of the court is that “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,” and in another clause refers to a “Chief Justice.” Everything else is set by federal statute, and so is in principle open to being changed by another statute. The only limit is what is politically feasible, as FDR found to his chagrin. > [@](#): > > Do all justices have to be present for every case? So if you have 100 of them, one’s likely to be ill at any particular time. No. The current quorum is only six of the nine justices. > [@](#): > > Do they have to work in a particular building? So fire codes may prevent certain numbers. They could meet in Nationals Stadium if Congress so decreed.😉 ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 3, 2018, 10:11pm UTC](https://boards.straightdope.com/t/court-packing-limits/817253/3 "2018-07-03T22:11:32Z")
No, the size of the Court is set by statute at 9. Quorum is 6. ---
**Author:** ![Ace309](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ace309/32/1050_2.png) [@Ace309](https://boards.straightdope.com/u/Ace309)\ **Post date:** [July 3, 2018, 10:27pm UTC](https://boards.straightdope.com/t/court-packing-limits/817253/4 "2018-07-03T22:27:44Z")
It’s instructive that the 9th Circuit is so large that hearings en banc - normally heard by every circuit judge - are heard by 11 randomly selected judges o&put of the 29. That is to say that at least one court has made rules to account for a court being very large. Circuit courts typically hear cases in a three judge panel. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [July 3, 2018, 10:41pm UTC](https://boards.straightdope.com/t/court-packing-limits/817253/5 "2018-07-03T22:41:58Z")
> [@Northern\_Piper](#): > > No, the size of the Court is set by statute at 9. Quorum is 6. And therefore it can be changed by statute. To 1001 or any other number. ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [July 3, 2018, 11:10pm UTC](https://boards.straightdope.com/t/court-packing-limits/817253/6 "2018-07-03T23:10:48Z")
Now that that question has been answered, could Congress pass age limits. You must retire by age 75 or after 25 years? I’d assume they could do this for new justices, but could they apply it retroactively to sitting justices? ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [July 3, 2018, 11:15pm UTC](https://boards.straightdope.com/t/court-packing-limits/817253/7 "2018-07-03T23:15:26Z")
> [@OldGuy](#): > > Now that that question has been answered, could Congress pass age limits. You must retire by age 75 or after 25 years? I’d assume they could do this for new justices, but could they apply it retroactively to sitting justices? Not without a constitutional amendment. The constitution specifies that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.” Arguably simply getting older does not count as some sort of bad Behavior and thus would not be a constitutional method of forcing a seated justice from the court. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 4, 2018, 1:12am UTC](https://boards.straightdope.com/t/court-packing-limits/817253/8 "2018-07-04T01:12:52Z")
> [@Exapno\_Mapcase](#): > > And therefore it can be changed by statute. To 1001 or any other number. Sure. But the OP seemed to be asking about the current situation with the upcoming vacancy. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [July 4, 2018, 2:12am UTC](https://boards.straightdope.com/t/court-packing-limits/817253/9 "2018-07-04T02:12:40Z")
> [@Northern\_Piper](#): > > Sure. But the OP seemed to be asking about the current situation with the upcoming vacancy. First, the OP asked what could “theoretically” happen. Second, Congress could theoretically change the size of the court next Tuesday if they felt like it. ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [July 4, 2018, 2:43am UTC](https://boards.straightdope.com/t/court-packing-limits/817253/10 "2018-07-04T02:43:15Z")
> [@Northern\_Piper](#): > > Sure. But the OP seemed to be asking about the current situation with the upcoming vacancy. The OP brought up court packing, which obviously requires changing the size of the court. So what’s relevant is what can be changed by statute. And the answer is, “almost anything,” short of the exceptions already noted. The Constitution itself has very little to say about the Court itself; even the power of judicial review of Congressional Acts is not specified, but had to be established by George Marshall. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [July 4, 2018, 4:43am UTC](https://boards.straightdope.com/t/court-packing-limits/817253/11 "2018-07-04T04:43:57Z")
> [@Ace309](#): > > It’s instructive that the 9th Circuit is so large that hearings en banc - normally heard by every circuit judge - are heard by 11 randomly selected judges o&put of the 29. That is to say that at least one court has made rules to account for a court being very large… I was in San Francisco some years ago and visited the beautiful old Federal courthouse there. As it happens, the Ninth Circuit was hearing an _en banc_ challenge to some provision of California election law that day. I saw a bit of oral argument and felt sorry for the lawyers, getting pounded on by so many judges! > [@Colibri](#): > > …even the power of judicial review of Congressional Acts is not specified, but had to be established by George Marshall. He was a great man, to be sure, but he wasn’t a judge, and that was a bit before his time. > **[George C. Marshall](https://en.wikipedia.org/wiki/George_Marshall)** > > George Catlett Marshall Jr. GCB (31 December 1880 – 16 October 1959) was an American army officer and statesman. He rose through the United States Army to become Chief of Staff of the U.S. Army under Presidents Franklin D. Roosevelt and Harry S. Truman, then served as Secretary of State and Secretary of Defense under Truman. Winston Churchill lauded Marshall as the "organizer of victory" for his leadership of the Allied victory in World War II. During the subsequent year, he attempted to but f > **[John Marshall](https://en.wikipedia.org/wiki/John_Marshall)** > > John Marshall (September 24, 1755 – July 6, 1835) was an American statesman, lawyer, and Founding Father who served as the fourth chief justice of the United States from 1801 until his death in 1835. He remains the longest-serving chief justice and fourth-longest serving justice in the history of the U.S. Supreme Court, and is widely regarded as one of the most influential justices ever to serve. Prior to joining the court, Marshall briefly served as both the U.S. secretary of state under Pres... ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [July 4, 2018, 5:12am UTC](https://boards.straightdope.com/t/court-packing-limits/817253/12 "2018-07-04T05:12:34Z")
> [@Elendil\_s\_Heir](#): > > He was a great man, to be sure, but he wasn’t a judge, and that was a bit before his time. D’oh! :smack: ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [July 6, 2018, 5:01am UTC](https://boards.straightdope.com/t/court-packing-limits/817253/13 "2018-07-06T05:01:37Z")
So can the president withdraw a nomination, or is that just a gentleman’s agreement? The constitution just says he can nominate. Could a Democratic congress after the next election approve Merritt Garland, since his name had already been placed before congress? ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [July 6, 2018, 5:16am UTC](https://boards.straightdope.com/t/court-packing-limits/817253/14 "2018-07-06T05:16:54Z")
> [@md2000](#): > > So can the president withdraw a nomination, or is that just a gentleman’s agreement? > The constitution just says he can nominate. [Many nominations have been withdrawn](https://en.wikipedia.org/wiki/Unsuccessful_nominations_to_the_Supreme_Court_of_the_United_States)when it appeared the nominee might not be confirmed. > [@](#): > > Could a Democratic congress after the next election approve Merritt Garland, since his name had already been placed before congress? No. His nomination expired with the end of the 114th Congress, during which it was placed. He would have to be nominated again to be considered. ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [July 6, 2018, 6:02am UTC](https://boards.straightdope.com/t/court-packing-limits/817253/15 "2018-07-06T06:02:30Z")
> [@md2000](#): > > Could a Democratic congress after the next election approve Merritt Garland, since his name had already been placed before congress? Even if it could, all confirmation does is consent to the appointment. It’s still up to the President to choose to appoint a confirmed nominee. ---
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [July 6, 2018, 12:14pm UTC](https://boards.straightdope.com/t/court-packing-limits/817253/16 "2018-07-06T12:14:39Z")
What would happen if a natural disaster (earthquake) or an act of terror (bomb) killed every Supreme Court justice in one fell swoop? Would the president nominate nine, or are there limits? ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [July 6, 2018, 12:36pm UTC](https://boards.straightdope.com/t/court-packing-limits/817253/17 "2018-07-06T12:36:39Z")
> [@kayaker](#): > > What would happen if a natural disaster (earthquake) or an act of terror (bomb) killed every Supreme Court justice in one fell swoop? Would the president nominate nine, or are there limits? It would be up to the president to nominate and, assuming the Senate is not in recess, the Senate to grant Advice and Consent prior to a president appointing a justice tot he court. If the Senate is out of session a president could make a recess appointment directly. Though there is no precedent as far as I can tell but perhaps a president could nominate more than just the number of vacancies, nine in this case. But a president could only appoint up to nine, under current law, upon receiving the Advice and Consent of the Senate. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [July 6, 2018, 1:04pm UTC](https://boards.straightdope.com/t/court-packing-limits/817253/18 "2018-07-06T13:04:46Z")
> [@Colibri](#): > > [Many nominations have been withdrawn](https://en.wikipedia.org/wiki/Unsuccessful_nominations_to_the_Supreme_Court_of_the_United_States)when it appeared the nominee might not be confirmed. > > No. His nomination expired with the end of the 114th Congress, during which it was placed. He would have to be nominated again to be considered. Is that the law, or a gentleman’s agreement? (It’s not like “it’s just not done that way” seems to matter in Washington nowadays) ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [July 6, 2018, 1:27pm UTC](https://boards.straightdope.com/t/court-packing-limits/817253/19 "2018-07-06T13:27:12Z")
> [@md2000](#): > > Is that the law, or a gentleman’s agreement? > > (It’s not like “it’s just not done that way” seems to matter in Washington nowadays) It’s Senate Rule XXXI: “Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be considered unless they shall again be made to the Senate by the President.” Presumably the rule could be changed, but it’s certainly common for nominations (judicial or executive) to expire under this rule subject to renomination. ---
**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:** [July 6, 2018, 7:22pm UTC](https://boards.straightdope.com/t/court-packing-limits/817253/20 "2018-07-06T19:22:31Z")
> [@Colibri](#): > > No. His nomination expired with the end of the 114th Congress, during which it was placed. He would have to be nominated again to be considered. Has any candidate ever been nominated more than once? [Next page](https://boards.straightdope.com/t/court-packing-limits/817253.md?page=2)