Flashback, April 1869: Supreme Court Number of Justices Set at Nine

With a new President more amenable to its agenda in April 1869, the Radical Republicans who controlled Congress increased the number of Supreme Court justices to nine, a figure that has endured to the present, though not without some challenges.

From the inauguration of George Washington in 1789 to that of Ulysses S. Grant 80 years later, the number of justices changed six times. That shifting history was forgotten during the firestorm of controversy in 1937 when Franklin Roosevelt presented his “court-packing” scheme (i.e., appointing an “assistant” with full voting rights to any justice who would not retire after age 70).

The number of justices has become something of an issue again in recent weeks as Democratic Presidential candidates have floated proposals to “fix” the court. Frustrated over the shelved nomination of Barack Obama appointee Merrick Garland and Donald Trump’s successful placement of Neil Gorsuch and Brent Kavanagh on the high court, they have cast about for a solution that would counter potentially decades of right-wing domination of the judiciary.

Kamala Harris, Kirsten Gillibrand, and Elizabeth Warren all told Politico that they'd consider expanding the size of the Supreme Court. Pete Buttigieg, Mayor of South Bend, Ind., has presented the most concrete proposal for returning to something like bipartisan in the confirmation process, advocating giving Democrats and Republicans the same number of seats on the bench (5 each) with the combined 10 choosing another five among themselves.

Amid all this hullabaloo, it might be worthwhile revisiting another historically fraught period of Congressional-Supreme Court relations: the 1860s. Arguably, the dominant event of the decade—the Civil War—became, in the phrase of the time, an “irrepressible conflict” because of the high court’s divisive Dred Scott decision. 

The thought that Abraham Lincoln’s Southern successor in the White House, Andrew Johnson, might move the court toward postwar disenfranchisement of African-Americans led the Radicals in Congress to reduce the number of justices from 10 in 1863 till only six by 1866.

This meant that when the President did have someone in mind to fill a seat on the bench—former Ohio attorney general Henry Stanbery—the nomination was virtually dead on arrival, especially following the rumor that Stanbery had drafted the President’s veto of the Civil Rights Act.

It quickly became apparent, though, that by striking a blow against Johnson, the Radicals only impaired the overall functioning of the judicial system. For years, the justices, in addition to their regular court duties, were expected to serve as circuit judges within particular geographic jurisdictions. This had been a bone of contention for aging jurists dating back to the founding of the republic. (Indeed, John Jay, the first Chief Justice of the Supreme Court, refused reappointment to the bench because he did not want to deal with this again.)

By the 1860s, the admission of California to the Union, and the possibility of more states entering soon, meant that the justices would have to ride even longer distances than they had previously. 

And even without the greater demands made by this additional travel, the transformation of the republic had placed additional strains on the judicial system. Not only had the expansion in geography to the Pacific Ocean produced more litigation, but so did the consequent growth in business and in government itself, as the federal government created new powers to quell the far-flung rebellion that broke out in the Confederacy, as well as the counter-revolution that sought to deny the new class of freedmen their rights in the Reconstruction period.

All of this created such an untenable situation that a bipartisan consensus for reform actually developed. Senator Lyman Trumbull of Illinois was able to secure solid majorities among Republicans and Democrats in passing the bill. At one fell swoop, by adding an intermediate level of circuit courts between the Supreme Court and the district court and by boosting the Supreme Court number of justices to nine, the legislation was able to relieve pressure on the highest court in the land and ensure a greater federal presence in southern states that were resisting Reconstruction.

While Republicans played games with the court’s composition in the 1860s, Franklin Roosevelt was willing to do so at the start of his second term, in frustration over all the New Deal legislation that the high court held unconstitutional. It should be remembered, though, that even at the height of the President’s popularity, members of his own party were willing to stand up to him and make him back down in a humiliating defeat.

Three years ago, Republicans breached any possibility of a bipartisan approach to the confirmation process by refusing even to act on the nomination of Garland. They have now invited a furious reaction by Democrats.

On one point, the Democrats are correct: nothing in Article III of the Constitution sets out a specific number of justices. On the other hand, changes in the number of justices have served as a marker for the politicization of the high court—and, once the electoral tides have turned, can be used against the party that proposed the change in the first place.

(The image accompanying this post, taken in 1869, is believed to be the first photo of the justices of the Supreme Court.)