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VERIFY: Congress can change the number of Supreme Court justices. But this hasn't been done in over 150 years

The Verify team looked into whether Congress can change the number of Supreme Court justices, after some top Democrats proposed adding four new seats to the bench.


Does the Constitution allow for the number of Supreme Court justices to be changed? Can you really have more than nine justices? 


Yes. The Constitution does not specify exactly how many justices should sit on the Supreme Court. Originally, there were just six justices. During the Civil War, there were as many as ten justices. There have been nine justices since 1869. 



On the steps of the Supreme Court, some top Democratic leaders proposed adding four new Supreme Court Justices to the bench, changing the number of seats to 13. 

While House Speaker Nancy Pelosi said that she currently has "no plans" to bring such a bill to the floor, top Democrats like House Judiciary Committee Chairman Jerry Nadler D-NY and Sen. Ed Markey, D-Mass made their case. 

"We are here today because the United States Supreme Court is broken," said Markey. "It is out of balance and it needs to be fixed."

Some on social media have questioned whether this type of change is allowed under the Constitution. 

The VERIFY Team went to find out, by looking to the Constitution, with some help from Adam Levitin, a professor at The Georgetown University Law Center and Paul Schiff Berman, from The George Washington University Law School. 

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Article III, Section I of the Constitution mandates that "the judicial power of the United States shall be vested in one Supreme Court," and that the judges “shall hold their offices during good behavior.”

However, The Constitution does not say anything about the specific number of Justices. 

"Congress can change the number of Justices on the Court whenever it feels like it," said Levitin. "And historically it has.” 

"There's nothing magic about the number nine," said Berman.

In 1789, the First Judiciary Act set the number of justices to six. During the Civil War, it was raised to as high as ten justices. In 1869, Congress settled on nine justices. 

“That’s been the number we’ve had for the past 150 years," said Levitin. "But there’s nothing magic about it. It’s just - that’s where we’ve set the number historically.” 

The last time there was a big push to change the number of justices was in 1937 with President Franklin Roosevelt. In the end, this effort failed. 

So we can Verify that yes, Congress can change the number of Supreme Court justices.