Court Packing

Court Packing in the United States

Changing the orientation of an appellate court by increasing its size. Court “packing” is legally possible because Congress and most state legislatures have the power to change the size of federal and state appellate courts, respectively. If a particular appellate court, the U.S. Supreme Court for example, renders a series of decisions that are incompatible with the policy priorities of Congress or the president, the Congress could increase the size of the Court. New justices could be added, and the larger Court would then presumably render more acceptable decisions. Six justices were authorized for the first Supreme Court. The number was temporarily reduced to five in 1801, but returned to six in 1804. The number of justices was then elevated one at a time as new judicial circuits were created with the addition of new states. The number stabilized at nine in 1869.

See Also

Court “Curbing” (Judicial Effects and Policies).

Analysis and Relevance

The most blatant attempt to influence Supreme Court decisions by changing its size was the “packing” plan proposed by President Franklin D. Roosevelt in 1937. He had just been reelected by overwhelming majority and had introduced a number of proposals designed to facilitate economic recovery. Most of his proposals were adopted by Congress as part of the New Deal, but many were subsequently struck down by the Supreme Court. Frustrated by the Court’s decisions, and having had no opportunity to nominate a justice during his first term, Roosevelt decided to enlarge the Court. The proposal he sent to Congress called for the nomination of an additional justice to the Court any time one of the sitting justices reached the age of 70 and did not retire. Had the Congress adopted Roosevelt’s proposal, he would have been able to add six justices to the Court. Roosevelt attempted to sell the plan as one to aid the Court in handling its caseload, although his motives were otherwise quite clear. Roosevelt’s plan to “pack” the Court was designed to “curb” its decisional behavior. Congress rejected the plan, but the Court almost immediately altered its course in the wake of the political pressure.

Notes and References

  1. Definition of Court Packing from the American Law Dictionary, 1991, California

Court Packing in the U.S. Legal History


President Franklin Delano Roosevelt’s controversial plan to appoint Supreme Court justices who were sympathetic to his views, by offering retirement benefits to the sitting justices.

Court Packing: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Court Packing. This part provides references, in relation to Court Packing, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Court Packing by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Court Packing and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Court Packing or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Court Packing and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Court Packing. Finding these decisions can be challenging. In many cases, researchers about Court Packing should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Court Packing when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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