Expanding the Supreme Court Beyond Nine Justices Would Be Unconstitutional
Source: "Sarah Isgur's new Supreme Court book is witty, sharp and essential reading | Fox News." April 16, 2026. www.foxnews.com
The Gist
The author argues that adding more justices to the Supreme Court would violate the Constitution. He believes that because the Court has had nine justices for over 150 years, and because past attempts to change this failed, expanding it now would break with our legal traditions and damage the rule of law.
Conclusion
It would be unconstitutional to expand the Supreme Court beyond its current nine justices
Premises
- The Court's size has been fixed at nine justices since the Circuit Judges Act of 1869, representing 157 years of constitutional stability
- The last change to the Court's composition occurred immediately after the Civil War and ratification of the 14th Amendment's due process guarantee
- Franklin Roosevelt's 1937 court-packing attempt failed even within his own party, demonstrating historical rejection of such expansion
- Court-packing would represent a fundamental break with legal history and evolution, inconsistent with the rule of law
- Expanding the Court would begin an unpredictable cycle that could undermine constitutional governance
Assumptions
- Long-standing institutional practices acquire constitutional weight over time
- The post-Civil War context of the 1869 Act gave it special constitutional significance
- Historical precedent of rejecting court-packing attempts reflects constitutional principles
- Maintaining the rule of law requires respecting established institutional boundaries
- Constitutional interpretation should consider historical evolution and stability