Expand the Supreme Court to Thirteen Justices

The number of seats on the Supreme Court is set by statute, not by the Constitution. 28 U.S.C. § 1 currently fixes it at nine: one Chief Justice and eight associate justices, with six required for a quorum. The number has been changed seven times since 1789, ranging from a low of five (set by statute in 1801, never reached) to a high of ten (1863). The number has stood at nine since the Judiciary Act of 1869. The Judiciary Act of 2023 (S. 1616 / H.R. 3422, 118th Congress) would amend 28 U.S.C. § 1 to expand the Court to thirteen justices.

What 28 U.S.C. § 1 does

28 U.S.C. § 1 reads: “The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.” Justices serve during good behavior under Article III, Section 1, which in practice means life tenure subject only to impeachment. The composition of the Court at any given time depends on the timing of vacancies and on the partisan control of the Senate when each nomination is considered.

Six of the nine justices on the current Court were appointed by Republican presidents. Three of those six were confirmed during the period 2017 to 2020. Justice Neil Gorsuch was confirmed in April 2017 to a seat that had been vacant for more than fourteen months. Justice Brett Kavanaugh was confirmed in October 2018. Justice Amy Coney Barrett was confirmed thirty days after her nomination and eight days before the November 2020 general election. The seat that Justice Gorsuch filled had been the subject of a prior nomination: on March 16, 2016, President Obama nominated Judge Merrick Garland; the Senate Judiciary Committee declined to hold confirmation hearings; the nomination expired on January 3, 2017, after 293 days, the longest pending period of any Supreme Court nominee in United States history.

The statute

The Constitution does not specify the number of Supreme Court justices. The number has been set by statute since the Judiciary Act of 1789, and Congress has amended that statute seven times. An act of Congress, signed by the president, is sufficient to change the count. No constitutional amendment is required.

The Judiciary Act of 2023 (S. 1616 in the Senate, H.R. 3422 in the House, 118th Congress) is the bill currently before Congress. The lead Senate sponsor is Senator Edward Markey of Massachusetts; the lead House sponsor is Representative Hank Johnson of Georgia. The bill was first introduced in the 117th Congress as S. 1141 / H.R. 2584 and has been reintroduced in each subsequent Congress.

The provisions:

• Amend 28 U.S.C. § 1 to set the size of the Court at thirteen justices: one Chief Justice and twelve associate justices.
• Provide that the four new associate justice positions are filled through the existing Article II, Section 2 process of presidential nomination and Senate confirmation.
• Maintain the existing quorum of six justices for the conduct of court business.
• Take effect on enactment.

Precedent

Congress has set or changed the number of Supreme Court justices seven times. The Judiciary Act of 1789 set the number at six. The Judiciary Act of 1801 reduced it to five (the reduction never took effect, as the act was repealed in 1802). The Seventh Circuit Act of 1807 expanded the Court to seven. The Eighth and Ninth Circuits Act of 1837 expanded it to nine. The Tenth Circuit Act of 1863 expanded it to ten. The Judicial Circuits Act of 1866 began phasing the count down to seven. The Judiciary Act of 1869 set the number at nine. The number has not been changed since.

The 1937 Judicial Procedures Reform Bill, proposed by President Franklin Roosevelt, would have authorized appointment of an additional justice for each sitting justice over the age of seventy, up to a maximum size of fifteen. The bill was reported unfavorably by the Senate Judiciary Committee and was never voted on by the full Senate. No subsequent expansion has been proposed by a sitting president; expansion bills have been introduced by members of Congress in each of the 117th, 118th, and 119th Congresses.

Comparable national supreme courts vary in size. The Federal Constitutional Court of Germany has sixteen justices. The Supreme Court of India has thirty-four. The Supreme Court of Canada has nine. In each case the size of the court is set by ordinary legislation rather than by entrenched constitutional provision. The Presidential Commission on the Supreme Court of the United States, which submitted its final report in December 2021, concluded that Congress has statutory authority to set the size of the Court and that there is no constitutional bar to expansion.

First 100 days

Day one. The president sends a message to Congress requesting passage of the Judiciary Act and identifying four nominees for the new associate justice positions. The Department of Justice files a brief in any pending litigation defending the constitutional authority of Congress to set the size of the Court.

Day thirty. The Senate Judiciary Committee holds confirmation hearings for the four nominees on a one-per-week schedule. The committee reports each nomination to the full Senate.

Day ninety. The Judiciary Act is signed into law. The Senate confirms the four new associate justices. The Court convenes with thirteen justices for its next sitting.

Effect of the reform

Expansion to thirteen justices matches the size of the Supreme Court to the number of federal circuits, which has been thirteen since the creation of the Federal Circuit in 1982. The current alignment of nine justices with the regional and District of Columbia circuits dates to 1869, when there were nine circuits and nine justices. A thirteen-justice Court reduces the marginal effect of any single appointment on the Court’s long-run composition and reduces the dependence of that composition on the timing of vacancies relative to federal election cycles. The change does not alter Article III tenure or the appellate jurisdiction of the Court. The process for presidential nomination and Senate confirmation is unchanged.