President Biden issued an executive order creating a Commission on the Supreme Court of the United States. The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform. Some of the issues the Commission will examine include length of service of justices, membership and size of the Court; and the Court’s case selection, rules, and practices.
One of the Commission's issues getting a lot of attention is the number of justices that serve on the Court. This is a contentious issue, because justice appointments can be a partisan endeavor. The size of the court is not a new issue, and it has changed throughout history. The Judicial Vesting Clause of the Constitution established the judiciary but left it to Congress to decide its makeup. The Judiciary Act of 1789 established the Supreme Court with six justices.
Over the years, through acts of Congress, that number fluctuated from as low as 5 to a high of 10 justices during the Lincoln presidency. After the Civil War, the number of justices was set at nine by statute. In 1937, President Franklin Roosevelt proposed a bill to expand the Court. It is commonly called the "court-packing" plan. Recently, a House bill was proposed for a constitutional amendment to set the Supreme Court at nine justices. While an amendment would likely make the number of justices fixed at nine forever, it is very difficult to ratify a constitutional amendment by 38 of the 50 states. So, changes to the Court would come from new legislation by Congress.
Timelines of Federal Judicial History
CRS Report: “Court Packing”: Legislative Control over the Size of the Supreme Court
When Franklin Roosevelt Clashed With the Supreme Court—and Lost