From Fox News:

“The Constitution does not stipulate how many justices may serve on the Supreme Court. It instead empowers Congress to adjust the Court’s size,” James Wallner, a resident senior fellow for governance at the R Street Institute, told Fox News. “And the House and Senate have regularly used that power to adjust the Court’s size through the Civil War. The first Congress set the Court’s size at six justices when it passed the Judiciary Act of 1789. Federalist majorities in the House and Senate reduced the Court’s size to five justices in the late 1790s.”

Wallner continued: “Court Packing refers to the unsuccessful attempt by FDR and his allies in Congress to pass the Judicial Procedures Reform Bill of 1937. The bill would have expanded the Court’s size to 15 justices … Opponents of the legislation denigrated it as ‘court packing’ because the effort was motivated by FDR’s desire to circumvent the Court’s conservative majority that had ruled several pieces of his New Deal legislative agenda to be unconstitutional.”

So the difference between the responsible exercise of Congress’ power to adjust the size of the Supreme Court and the constitutional but politically unpalatable practice of court-packing, Wallner says, “lies in the motivation of its proponents. As in the 1930s, Democrats in Congress appear to support Court Packing as a way to get around a conservative majority on a nine-justice Supreme Court.”

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