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.)
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