numerous occasions in the nation’s first century (in 1789, 1801, 1802, 1807, 1837, 1863, 1866, and 1869), expanding or contracting the Supreme Court’s size for both institutional and political reasons. On several occasions, Congress adjusted the Court’s size in large part to influence the future course of its decisions: The Federalists in 1801, the Democratic Republicans in 1802, the Republicans in the 1860s, and the Roosevelt administration in 1937 had this objective. President Roosevelt explained a few years after the failure of his 1937 plan that he turned to Court expansion to influence the Court in part because of its “undoubted constitutionality.”[69] Two decades later, in the early 1950s, members of Congress continued to assume that the only way to permanently fix the size of the Supreme Court at nine members was through a constitutional amendment.
During the Commission’s public hearings, one witness argued that, although Congress has broad power to modify the size of the Supreme Court for many purposes, it cannot do so for “partisan” reasons.[70] This argument faces a few challenges.[71] First, it is doubtful that “partisan” reasons can be disentangled from “good-government” reasons. For example, the changes to the Supreme Court in 1807 and 1837 by the Democratic Republicans and Jacksonian Democrats, respectively, had both institutional and political motives;[72] lawmakers not only sought to give the Court more personnel to serve a growing nation but also enabled their party leaders—Presidents Jefferson and Jackson—to shape the Supreme Court.[73] Second, and relatedly, the argument has little historical support; as discussed in Part I, every change to the Supreme Court’s size has tended, at least in part, to serve the interests of one political party.
III. Arguments in Support of and Opposition to Court Expansion
In order to fulfill our charge to provide a complete account of the contemporary Court reform debate, this Part sets out arguments made by proponents and opponents of expansion. The Commission as a whole takes no position on the validity or strength of these claims. Mirroring the broader public debate, there is profound disagreement among Commissioners on this issue. Accordingly, we present arguments for and against expansion independently of each other.
A. The Case for Expanding the Court
The current calls to expand the size of the Court stem most immediately from the Senate’s refusal to act on President Obama’s nomination of Judge Garland to the Supreme Court, as
