Nine Justices, and the Time Someone Tried to Change It

There are nine justices on the Supreme Court. Most Americans know that number the way they know the number of stars on a flag, as a fixed fact of the country.

It is worth knowing, then, that the number nine appears nowhere in the Constitution. The founders did not set it. And in 1937, a popular president, freshly reelected by a landslide, came very close to changing it. The story of how he tried, and how he failed, is one of the clearest lessons the republic has ever given itself about the independence of its courts.

Start with the thing most people do not know. Article III of the Constitution creates "one supreme Court," and then says almost nothing about its shape. It does not fix the number of justices. It leaves that to Congress.

And Congress used that power, repeatedly, in the early republic. The Court began with six justices under the Judiciary Act of 1789. The number moved over the following decades, up to seven, then nine, then briefly ten during the Civil War. After the war, Congress even shrank it, partly to deny President Andrew Johnson the chance to fill seats. Then, in the Judiciary Act of 1869, Congress set the number at nine. It has stayed there ever since.

So nine is not a constitutional command. It is a long, unbroken habit. For more than a century and a half, Congress has had the power to change the size of the Court and has simply chosen not to. That distinction, between a thing the law forbids and a thing the country has decided not to do, is the whole subject of this essay.

By 1937, Franklin Roosevelt was frustrated, and his frustration was not unreasonable on its own terms. He had been elected in 1932 to pull the country out of the Great Depression, and reelected in 1936 by an enormous margin. He had a clear mandate and an ambitious program, the New Deal. And the Supreme Court kept striking pieces of it down. Since 1934, the Court had held key New Deal laws unconstitutional. A president with the country behind him saw a small group of unelected judges blocking the agenda the voters had endorsed.

On February 5, 1937, Roosevelt sent Congress a bill. It was officially the Judicial Procedures Reform Bill. Its central provision was this: for every sitting justice over the age of 70, the president could appoint an additional one, up to a maximum of six. Applied to the Court as it stood, that would have let Roosevelt name six new justices at once, enlarging the bench from nine to fifteen.

Roosevelt did not present it as what it was. The official rationale was efficiency. The Court, the argument went, was old and overworked, falling behind on its cases, in need of fresh and younger help. He made this case directly to the public in one of his fireside chats on the radio.

But almost no one was fooled, and that turned out to matter enormously.

The bill was legal. This is the crucial point. Congress had the constitutional power to change the Court's size. Roosevelt had precedent on his side, the number had moved before. He had a landslide mandate and large majorities in both houses. By the ordinary arithmetic of politics, the bill should have passed.

It did not, and the reasons are worth listing, because together they are a portrait of a system defending itself.

The efficiency argument collapsed almost at once. Chief Justice Charles Evans Hughes wrote a letter, with the agreement of justices on both the liberal and conservative wings of the Court, that calmly dismantled Roosevelt's claim. The Court was not behind on its work. It was fully current. Adding justices, Hughes noted, would not speed the Court up; more justices would mean more voices in every conference, and longer deliberations, not shorter. The stated reason for the bill was shown to be untrue, in public, by the Chief Justice himself.

Once the efficiency story fell, what remained was the real purpose, plainly visible: a president trying to add justices until the Court would stop ruling against him. And that purpose alarmed people across the political spectrum. Opposition came not only from Roosevelt's Republican opponents but from the leaders of his own party, including the Democratic chairs of both judiciary committees. The Senate Judiciary Committee, controlled by Roosevelt's own party, issued a report on the bill in language remarkably blunt for an official document. It called the measure an invasion of judicial power such as had never before been attempted in the country. It said the bill should be so emphatically rejected that its like would never be presented again.

In July 1937, the Senate voted, 70 to 20, to send the bill back to committee, stripped of the court-packing provision. It was dead.

Something else happened while the fight was underway. The Court itself began upholding New Deal legislation, including the Social Security Act. Whether one justice changed his vote because of political pressure, the famous quip was "the switch in time that saved nine," or whether his reasoning had shifted on its own, historians still genuinely debate. What is not in dispute is the outcome. The bill failed, and the Court remained nine.

The court-packing fight of 1937 settled almost nothing in law. Congress still has the power to change the size of the Supreme Court. It had that power before 1937 and it has it today. No statute was passed forbidding it. No amendment closed the door.

What 1937 established was something else, and arguably something stronger than a law. It established a norm. The country looked directly at the question, should a president be able to enlarge the Court until it agrees with him, and answered, through a Senate controlled by that president's own party, no. Not because it was illegal, but because it was understood to be corrosive, an attack on the idea that courts must be independent of the president and the Congress they check.

That is the lesson worth carrying, and it is a subtle one. A great deal of what holds a republic steady is not written in the Constitution at all. It lives in norms, in the things the country has the power to do and has decided, firmly and across party lines, that it will not. Those restraints are real, and 1937 shows they can be strong. But they are also only as durable as each generation's willingness to keep honoring them. The number nine is not protected by the Constitution. It is protected by a promise the country made to itself, and a promise holds only as long as it is kept.