CHICAGO (NewsNation Now) — As a Senate panel holds hearings over the confirmation of President Donald Trump’s Supreme Court nominee, the idea of expanding the number of high court justices, or “court packing,” has taken center stage.
Should Judge Amy Coney Barrett be chosen for the lifetime role, her confirmation would likely cement a 6-3 conservative majority on the Supreme Court.
Several Republicans have expressed concerns that Democrats will try to expand the nine-member court, a question that Sen. Kamala Harris avoided in the vice presidential debate last week.
“The straight answer is they are going to pack the Supreme Court if they somehow win this election,” Vice President Mike Pence said.
Neither Harris nor Democratic presidential nominee Joe Biden have taken a stance on court packing.
“They’ll know my position on court packing when the election is over,” Biden said when pressed on the issue during a campaign stop in Phoenix last week.
President Donald Trump has criticized Biden for refusing to state his opinion on the matter.
The issue was also brought up in the first debate for Georgia’s candidates for Senate this week. Republican Sen. David Perdue claimed Democrat Jon Ossoff would be “nothing but a rubber stamp” on packing the Supreme Court, despite Ossoff saying he opposes the efforts.
As the issue finds its way into more conversations, here’s some historical context on expanding the Supreme Court.
WHY DOES THE U.S. SUPREME COURT HAVE NINE JUSTICES?
The U.S. Constitution places the power to determine the number of justices on the Supreme Court in the hands of Congress. All justices appointed to the lifetime role are nominated by the president and confirmed by the Senate.
It’s under Congress’ direction to establish courts, according to Article 3, Section 1.
The Judiciary Act of 1789 set the number of justices at six — one chief justice and five associates.
Since then, Congress has passed various legislation to change the number of justices on the high court, which has fluctuated from a low of five to a high of 10.
The Judiciary Act of 1869 fixed the number of justices at nine. No subsequent change to the number of justices on the U.S. Supreme Court has occurred since.
WHEN WAS THE LAST TIME A PRESIDENT TRIED TO CHANGE THE SIZE OF THE HIGH COURT?
Franklin D. Roosevelt was the last president who attempted to expand the Supreme Court’s membership. After winning the 1936 presidential election, Roosevelt proposed a bill that would have added one justice to the court for each justice over the age of 70, with a maximum cap of six.
However, Roosevelt received backlash over the legislation, and it was never enacted by Congress.
HOW MANY JUSTICES MUST BE PRESENT TO HEAR A CASE?
A quorum of six justices are needed in order to decide a case, according to the Supreme Court. Justices can participate by listening to audio recordings of the oral arguments, as well as by reading transcripts.