The topic of discussion for this Constitution Monday is the United States Supreme Court. The U.S. Constitution assigns the President to nominate people to the Supreme Court with the advice and consent of the U.S. Senate. According to this history site, it is Congress and not the Constitution that determines the number of justices on the Supreme Court. Congress passed the Judiciary Act of 1789, and President George Washington signed the Act into law – setting the number of justices on the Supreme Court at six.
According to the history site, President John Adams was the first president to use the Supreme Court for political purposes. When he lost the 1800 presidential election to Thomas Jefferson, he and his Federalists allies in Congress worked to deny Jefferson, a Democratic-Republican, a pick for the Supreme Court.
When Chief Justice Oliver Ellsworth resigned from the Supreme Court for illness, Adams nominated, and Congress confirmed a successor, John Marshall, on February 4, 1801, before Adams left office the following month. Adams and the Federalists went one step further and passed the Judiciary Act of 1801, decreasing the number of justices on the Supreme Court from six to five. This further lowered the odds that Jefferson would appoint a justice.
As often happens, President Jefferson and the new Congress repealed the Judiciary Act of 1801, returning the official number of justices from five to six. During the interim, there were no changes on the Supreme Court, so the number of seated justices never dropped to five.
Other Presidents and Congresses added and subtracted justices for political reasons. The history site continued with this information.
By the start of the Civil War, the number of Supreme Court justices had increased to nine in order to cover additional circuit courts in the expanding American West. But Abraham Lincoln, upset over the Supreme Court’s 1857 decision in Dred Scott and wanting to cement an anti-slavery majority on the Court, added a 10th justice in 1863.
After the Civil War and Lincoln’s assassination, Congress clashed with Lincoln’s successor, Andrew Johnson, who was rapidly undoing the “Radical Republicans’” plan for Reconstruction. To limit Johnson’s power, Congress passed legislation in 1866 that cut the number of Supreme Court justices back to seven, all but assuring that Johnson wouldn’t have the opportunity to fill a vacant seat.
The last time Congress changed the number of Supreme Court justices was in 1869, again to meet a political end. Ulysses S. Grant was elected president in 1868 with the backing of the congressional Republicans who had hated Johnson. As a gift to Grant, Congress increased the number of justices from seven back to nine, and Grant gamely used those picks.
The Supreme Court had just ruled that paper money was unconstitutional, which would have “wreaked havoc” with the U.S. Treasury, says Marcus. But Grant and Congress quickly confirmed two new justices who reversed the Court’s decision in the earlier case, saving the Republicans from having to undo the nation’s entire system of legal tender.
The number of justices remained at nine until the 1930s when Franklin D. Roosevelt was in office. The Supreme Court made some rulings that “undercut” some of FDR’s New Deal legislation. In response, FDR and his Justice Department proposed a bill that would allow FDR to appoint six new justices, bringing the total of justices on the Supreme Court to fifteen. The legislation proposed that “all sitting justices older than 70 would be asked to resign.” For each justice that refused to resign, FDR would appoint an additional justice to the bench. There were six justices age 70 or older at the time, which meant that FDR could appoint up to six new justices. FDR was accused of “packing the court,” and his plan was rejected by a vote of 70-20 in the Senate.
The number of Supreme Court justices has remained at nine since 1869 despite FDR’s attempt. However, Democrats are upset with the Republican majority justices currently on the Court. There are five conservatives and three liberals on the Supreme Court with Chief Justice John Roberts being the swing vote. The Republican majority, particularly the number of justices who rule according to the Constitution, makes it difficult for liberals to win court cases. Therefore, President Joe Biden is seeking to make a change to the Supreme Court.
Biden wants to expand the number of justices on the Supreme Court to overcome the conservative majority. Last week Biden signed the “Executive Order on the Establishment of the Presidential Commission on the Supreme Court of the United States. This commission is “a working group of federal judicial experts” who will determine if “reforming” the Supreme Court is a feasible idea and if such a change would have public support. The commission will study the matter for six months to make their determination.
Several powerful Democrats have already weighed in on the matter. Ilya Somin wrote a recent virtual speech that Justice Stephen G. Breyer gave at Harvard Law School. He told liberals to “think long and hard” about expanding the Supreme Court to eliminate the current 6-3 conservative majority. He said that such a move would “risk making justices appear more political and eroding public confidence in the court.” He stressed the independence of the Court by pointing to the resistance of the Court to listen to Donald Trump’s attempts to have the Court rule on the election.
Somin wrote that Breyer echoed the words of the late Justice Ruth Bader Ginsburg who said the following in 2019:
Nine seems to be a good number. It’s been that way for a long time…. I think it was a bad idea when President Franklin Roosevelt tried to pack the court….
If anything would make the court look partisan, … it would be that – one side saying, “When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.”
That impairs the idea of an independent judiciary….
Harry Reid, former Senate Majority Leader, told Democrats to be “very, very careful” in threatening to expand the Court. “I have no problem with the commission, but I think that the commission is going to come back and disappoint a lot of people because I think they’re going to come back and say, ‘We should just kind of leave it alone.’ I think it would be inappropriate at this time after that long history we’ve had in the country to have term limits for judges.”
Personally, I would not be surprised if Speaker of the House Nancy Pelosi and the House Democrats wrote and passed a bill expanding the Court. Pelosi seems to think that she can do whatever she wants, and she has the votes to get such a bill passed. It is questionable if such a bill would pass the Senate. However, Biden would not hesitate to sign such a bill into law.