Supreme Court “packing” isn’t radical. It has deep roots in American legal tradition.

On May 21, amid new Democratic appeals to expand the number of seats on the Supreme Court, Republicans on the House Judiciary Committee convened a hearing exploring “Court Packing: A Threat to the Supreme Court’s Legitimacy.”

Republicans see the fight over Court expansion as a winning issue. While public support for a formal ethics code and term limits for Supreme Court justices has risen as the Court’s job approval has hit record lows, polls show that increasing the number of seats on the Court is less popular. At the hearing, witnesses for the majority insisted there was good reason for such skepticism, warning that increasing the number of justices would “erode public trust in the Court” by drawing the judiciary into the realm of partisan politics. Critics of expansion also pointed to history to buttress their case, drawing especially on public pushback against President Franklin D. Roosevelt’s infamous 1937 court packing plan.

Yet, although the idea of court packing is marred by Roosevelt’s failed attempt, few judicial reforms are as rooted in American historical tradition than adjusting the number of seats on the Supreme Court to better represent American voters. In fact, in the 19th century, doing so was essential to securing the Court’s legitimacy with a skeptical public. Understanding this longer tradition could help build support for Court expansion today.

In its earliest years, Americans saw the Supreme Court as a body that was supposed to be representative of the country.

That idea animated Congress’s original vision for the federal court system. In 1789, legislators created two tiers of lower courts — district and circuit — but only provided for the appointment of one set of lower court judges to staff the district courts. That left Supreme Court justices to preside over geographically divided federal circuit courts in addition to their duties in the capital. They “rode” circuits to preside over cases, often in tandem with district court judges.

One of the central ideas behind circuit riding was judicial representation — that justices would hail from different geographical regions where they also served as circuit judges. The goal was to create a balance of knowledge and experience in the capital to apply to the cases that reached the Supreme Court. By the 19th century, each justice had an individual circuit assignment and the Senate expected presidents to fill each vacancy with a resident of the circuit in question.

The Court’s size also reflected the number of circuits; Congress adjusted the number of seats on the Court several times over the course of the 19th century, but always to coincide with an adjustment in the number of circuits.

This geographical balance was essential to creating maximum buy-in from an early American public that was skeptical of judicial power.

One critical aspect of this system helped generate public support for the courts by enabling average citizens to engage with Supreme Court justices wielding judicial authority. Unlike today’s federal appeals courts, the 19th-century circuit courts didn’t just hear appeals from the district courts. They also presided over certain types of federal trials. This practice meant that the Supreme Court justices riding circuit interacted with the citizens who were qualified to sit on a federal jury. For much of the century, that pool was limited to white men, and sometimes only to white male property holders. Even so, jurors were the primary political constituency of the circuit as both voters and officeholders; local, state, and even national officials could be found on federal juries.

Regular exposure to the region’s voters created a degree of trust in the justices as they approached their duties in the capital. There, Americans expected members of the Court to represent the laws, norms and ideas of their circuit, particularly in cases where regional expertise was needed. As new states joined the Union in the West, for example, residents clamored for expertise in the complicated land laws and practices of the region.

Responsiveness and accessibility did not, however, mean blind allegiance; members of the court did rule in ways that angered the residents of their respective circuits.

But unlike today’s court, the justices’ solution to popular protest was not further isolation — it was engagement. Throughout this era, justices routinely justified their decisions by writing newspaper articles and pamphlets or making public addresses in an attempt to sway the general public. In 1819, for example, Chief Justice John Marshall responded to angry protests in his circuit by publishing a defense of his opinion in McCulloch v. Maryland, which invalidated a state tax on the national Bank of the U.S. Because justices were part of the political world, Marshall saw such attempts at persuasion as part of his role as a public official.

Members of the Marshall Court recognized the importance of both persuasion and geographic balance for maintaining the court’s legitimacy; they often faced scathing criticism when 19th-century Americans believed the voices of their region weren’t represented by the court. In fact, disgruntled citizens sometimes charged that the Court had been “packed.”

Such charges became frequent in the 1850s, when Northerners complained that five of the nine circuits covered the South — despite nonslaveholding states having a far greater population and more legal business before the federal courts. In the aftermath of Dred Scott v. Sandford in 1857, in which the court declared that no Black person could be a U.S. citizen and that Congress had no right to legislate for the territories, critics charged that the opinion followed naturally from Southern efforts to “sectionalize and pack” the Supreme Court. When Republicans gained control over the federal government during the Civil War, they prioritized rebalancing the circuits to better reflect the growing population in the North and Midwest.

The close connection between the court’s legitimacy and judicial representation faded in the 20th century, when congress eliminated circuit riding and replaced the circuit courts of original jurisdiction with the circuit courts of appeals. Since then, the justices have been sequestered in Washington and efforts to add seats to the court have failed. Legislators did expand the number of circuits to 10 in 1929 and 13 in the 1980s, but the lower federal courts remain overburdened.

Today, nine justices serve the 13 circuits, and geography no longer plays a role in nominations. Only one justice, Neil Gorsuch, hails from west of the Mississippi River. And although they continue to oversee circuits, members of the Supreme Court have little interaction with voters.

Yet, despite how entrenched this version of the federal courts has become, the Supreme Court’s early history offers a playbook for champions of expansion in 2026. They’re building upon a time-honored American tradition: voters once expected justices to represent them, much like the members of the other branches of the federal government do. When voters felt as if that wasn’t happening, they insisted on adjustments to the Court.

This history suggests that expanding the number of judicial circuits and the number of justices on the Supreme Court to match it would not be a radical reform as critics charge. Instead, it would be returning to the ideals of our early political leaders and their vision for the federal courts.

Rachel Shelden is an associate professor of history and the director of the George and Ann Richards Civil War Era Center at Penn State. Her book, The Political Supreme Court: A Forgotten History, will be published by UNC Press’ Hodding Carter III imprint in October.

Made by History takes readers beyond the headlines with articles written and edited by professional historians. Opinions expressed do not necessarily reflect the views of The Inquirer.