Adding Supreme Court Justices: Can They Really Do That?

The election-year confirmation of Justice Amy Coney Barrett, in the wake of the Senate's inaction on the 2016 nomination of Judge Merrick Garland, has triggered widespread speculation that the next Congress and President, if Democratic, may seek to add justices to the U.S. Supreme Court. One end of the political spectrum views that prospect as improper “court packing,” while the other end considers it a reasonable response to hypocrisy. Whatever one's perspective, we could witness an effort to add seats to the court.

They can't do that . . . can they?

Sure they can. The number of Supreme Court justices is not set by the Constitution. So a change in the court's complement does not require a constitutional amendment. The Constitution says, in Article III, Section 1, only that “[t]he 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.” It then says that