Right-Sizing the Supreme Court: A History of Congressional Changes

Michael C. Blumm, Lewis & Clark Law School
Kate Flanagan
Anna Marie White

Abstract

Since the Republican Senate refused to consider President Obama’s nomination of Merrick Garland to the Supreme Court in 2016--coupled with the Trump Administration’s success in filling that seat with Neil Gorsuch, followed by the appointments of Brett Kavanaugh and Amy Coney Barrett--there has been widespread interest in how to balance a suddenly solidly conservative Court majority, one likely to remain so for decades. One way to do so is to expand the size of the Court, an issue the Constitution left to Congress, which exercised that authority repeatedly during the Constitution’s first 80 years. This article examines those mostly forgotten congressional changes to the Court’s size as well as Congress’ more notorious failure during the New Deal. The article reveals that the successful expansions were often due to population growth but always the product of political calculations. Since the U.S. population is now nearly ten times larger than it was when Congress last changed the Court’s size, reconsidering the Court’s size may be an issue ripe for congressional consideration, should the political winds suggest that is possible.