Like many these days, I was curious about the new proposals to change the number of Justices who serve on the Supreme Court. There is a Presidential Commission, established by Presidential Executive Order, and legislation hovering in the House of Representatives. At first blush, it seems consistent with Franklin Roosevelt’s 1937 attempt to re-structure the court, which proposed adding as many as six Justices in order to balance those who were older than 70 ½ years of age. So ‘number’ and a sort of ‘term limit’ are not new, nor are they strictly Constitutional in nature. FDR’s effort failed, despite control of House and Senate.
Digging around this morning was an effort to ascertain the magnitude of changes being proposed. The first issue, of course, is what the Framers thought about the court and expressed in the Constitution. We start with six as the number, decreed in The Judiciary Act of 1789, and which established the first Supreme Court.
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the supreme court of the United States shall consist of a chief justice and five associate justices, any four of whom shall be a quorum, and shall hold annually at the seat of government two sessions, the one commencing the first Monday of February, and the other the first Monday of August.”
It is brief and succinct. It specifies nothing constitutional regarding the composition of the Court. Since 1789, Congress changed the number of Justices on the Court several times:
1801. President John Adams and a lame-duck Federalist Congress passed the Judiciary Act of 1801, which reduced the Court to five Justices in an attempt to limit incoming President Thomas Jefferson’s appointments to the high bench. Jefferson and his Republicans soon repealed that act, putting the Court back to six Justices.
1807: Jefferson and Congress added a seventh Justice when it added a seventh federal court circuit.
1837: President Andrew Jackson was able to add two additional Justices after Congress again expanded the number of federal circuit court districts.
1863: Under wartime pressure, Congress created a 10th Circuit and it briefly added a 10th Supreme Court Justice.
1866: After conclusion of hostilities, Congress reduced the Court to seven Justices. That only lasted until…
1869: A new Judiciary Act in Congress set the number back to nine, with six Justices required at a sitting to form a quorum. President Ulysses S. Grant eventually signed that legislation.
1937: After Roosevelt’s election to a second term, the makeup of a conservative-leaning Supreme Court that predated his first term opposed some proposed dramatic changes. Roosevelt supported a Judicial Procedures Reform Bill of 1937 to add as many as six new Justices, the key provision being provision of Presidential authority to appoint additional justices, up to a maximum of six, for every Justice over the age of 70 years and 6 months.
2021: President Biden decrees a Presidential Commission on the Supreme Court, with the avowed intent to appoint four new Justices more to his liking, and to establish term limits for the serving Justices, who currently hold life-time appointments. Legislation is proposed to enact something similar with mixed support.
In sum, the number of Justices is not constitutionally limited to a specific number. “9” has stood since the beginning of Reconstruction, or a little more than 150 years ago. This latest attempt is ostensibly to create a more equitable and responsive justice system. It will create a new political branch of government, practically responsible not to the people through their elected representatives, but to the President who appoints them. The original Checks & Balances concept at the founding was to have an independent judiciary. Maybe we don’t need one any more. Things could move a lot faster with a Court that can make up new laws on its own.
Copyright 2021 Vic Socotra
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