Supreme Court Expansion

Contributor: Nathan Murphy. Lesson ID: 13799

The U.S. Constitution is specific on many things; however, when it comes to the court system, it does not even say how many justices should be on the Supreme Court. Why?


Government, History, United States

learning style
Auditory, Visual
personality style
Grade Level
High School (9-12)
Lesson Type
Dig Deeper

Lesson Plan - Get It!

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By the end of the 1700s, the executive and legislative branches of the United States government were having their own buildings constructed:

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However, this is where the Supreme Court met:

Old City Hall Supreme Court building in Philadelphia, PA

Image by Ben Franske, via Wikimedia Commons, is licensed under the CC BY-SA 4.0 license.

It was not until 1935 that the Supreme Court got its own grand building:

supreme court building

  • Why is it important that it took so long for the Supreme Court to get its own building?

In many ways, a building was not the only thing the judicial branch missed out on.

Let's find out what else!

It was not until well into the 20th century that the Supreme Court finally got an official building with the same grandeur as the White House and Capitol buildings.

supreme court

By this time, the Supreme Court and the judicial branch were quite different than when the Constitution was ratified.

Under the Constitution

From Article III, Section I of the United States Constitution:

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

This is nearly everything the Founding Fathers wrote about the structure of the American court system because many of them were concerned the justices on the Supreme Court would have too much power. So, they wanted the elected body, Congress, to decide the rest of the structure.

Almost immediately, the U.S. Congress passed the Judiciary Act of 1789, which created the vast network of regional and district courts and established the jurisdictions and boundaries detailing which court dealt with which cases.

This act also put the number of Supreme Court Justices at six.

  • Why was it an even number?

The act separated the country into three circuit courts, so two justices would come from each of these three regions. This was a way to ensure the entire country was represented in the highest court of the land.


As the United States continued to expand, the plan was to add an additional justice to the Supreme Court with every new circuit court.

This meant that the Supreme Court expanded regularly during the 19th century as the United States bought and fought for more land. These expansions were also done at opportune times for presidents who wanted to have a majority of sympathetic judges on the court.

  • If a Supreme Court justice were added with every circuit court in the country, how many would there be?

Look at this image showing the current circuit courts in the U.S. and identify how many there are:

Map of the US courts

Image by Tintazul, via Wikimedia Commons, is licensed under the CC BY-SA 2.5 license.

There are currently 11 circuit courts! That would be a lot of justices.

By the start of the Civil War, there were nine Supreme Court Justices to match the circuit courts at the time. However, President Lincoln added a tenth justice in the hopes of creating an anti-slavery majority.

After the Civil War, Congress passed legislation setting the number of justices to seven to prevent then-President Andrew Johnson from stopping Reconstruction. When Ulysses S. Grant was elected in 1869, Congress set the number of justices back to nine.

The country slowly forgot about all the changes that had been made in the past to the court. Sixty years later, however, a president would try to continue this long history of expanding the court.

  • Would it work?

New Deal and Court Packing

FDR, 1944

Image by Leon A. Perskie, via Wikimedia Commons, is licensed under the CC BY 2.0 license.

During the Great Depression, Franklin Roosevelt was trying to pass his New Deal policies.

These were known as "new" because they involved the U.S. government in the lives of Americans more so than ever before. While the goal was to help dampen the Great Depression, many people were not willing to let some of his policies pass.

As you watch Reshaping the Supreme Court, from American Experience | PBS, pay attention to the arguments against FDR's attempt to expand the Supreme Court:

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  • Did the opponents sound like the court had never been expanded before?
  • How was it against the Constitution to expand the court?

Roosevelt wanted to expand the court to 12 justices so he could add three Democrats to the court, which would make all his New Deal policies unchallenged in the court.

  • He was obviously doing this to fit his personal agenda; however, after learning about the multiple expansions of the court and the reason the system was made vague to begin with, do you think the idea of expanding the court again is strictly unconstitutional?

You now have an understanding of the historical expansion of the Supreme Court as well as attempts to continue the process.

Continue on to the Got It? section to explore how the government has historically harnessed the vagueness of Article III, Section I of the U.S. Constitution.

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