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SCOTUS: A Primer

by | Feb 1, 2017 | Columns, Law


The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. – U.S. Constitution, Article 3, Section 1

The number of U.S. Supreme Court Justices has a long and winding history that is replete with intrigue. Established by the Judiciary Act of 1789, the high court originally had five associate justices and one chief justice. But the size of the court grew to “accommodate the establishment of new circuits as the nation expanded.”

A seventh associate justice was added back in 1807 and, according to the Federal Judicial Center, another two justices were added in 1837.

Then in 1863 things began to get a bit curious. A Tenth Circuit was added on the west coast, and the court grew to ten. At the request of the chief justice in 1866, Congress passed a law that called for the reduction in the size of the Supreme Court through attrition in order to bring the court back down to seven justices.  However, before that even had a chance to take hold the Circuit Judges Act of 1869 was passed which brought the number of high court justices back to nine where it still stands – but not without controversy.

In 1937, President Franklin Roosevelt announced a plan to expand the U.S. Supreme Court to fifteen justices — ostensibly a result of his bruising history with the high court. Publically, however, FDR reasoned that fifteen justices would make the high court more efficient.

Here’s an excerpt from his fireside chat on March 9th:

What is my proposal? It is simply this: whenever a Judge or Justice of any Federal Court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the President then in office, with the approval, as required by the Constitution, of the Senate of the United States.
That plan has two chief purposes. By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all Federal justice speedier and, therefore, less costly; secondly, to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our national Constitution from hardening of the judicial arteries.
The number of Judges to be appointed would depend wholly on the decision of present Judges now over seventy, or those who would subsequently reach the age of seventy.

If, for instance, any one of the six Justices of the Supreme Court now over the age of seventy should retire as provided under the plan, no additional place would be created. Consequently, although there never can be more than fifteen, there may be only fourteen, or thirteen, or twelve. And there may be only nine.
There is nothing novel or radical about this idea. It seeks to maintain the Federal bench in full vigor. It has been discussed and approved by many persons of high authority ever since a similar proposal passed the House of Representatives in 1869.

Congress wasn’t buying any of that. Needless to say, FDR’s plan to force some justices to retire and add new ones did not go over well, and many cried the President was trying to “pack the court.”  What ensued was a raging battle according to Smithsonian Magazine:

Roosevelt’s message touched off the greatest struggle in our history among the three branches of government. It also triggered the most intense debate about constitutional issues since the earliest weeks of the Republic. For 168 days, the country was mesmerized by the controversy, which dominated newspaper headlines, radio broadcasts and newsreels, and spurred countless rallies in towns from New England to the Pacific Coast. Members of Congress were so deluged by mail that they could not read most of it, let alone respond. Senator Hiram Johnson of California noted, “I received some hundreds of letters a day, all on the Court—sometimes some thousands,” and Senator Royal Copeland of New York, inundated by 30,000 letters and telegrams, begged his constituents to desist. Both sides believed the future of the country was at stake. If Roosevelt won, opponents warned, he would destroy the independence of the judiciary and create an evil precedent for successors who wished to “pack” the court. If Roosevelt lost, his supporters countered, a few judges appointed for life would be able to ignore the popular will, destroy programs vital to the welfare of the people, and deny to the president and Congress the powers exercised by every other government in the world. Although the country divided evenly on the issue—about as many were for Roosevelt’s plan as against it—the opposition drew far more attention, especially on editorial pages.

Ultimately, Roosevelt lost a vicious legislative battle to change the makeup of the court — but won the war.  That’s because one member of the Supreme Court, interestingly named Justice Roberts, changed his vote in the case of West Coast Hotel Co. v. Parrish. This action by Roberts gives us the famous saying “the switch in time that saved nine.” Roberts’ vote supporting the Roosevelt administration ended efforts to pack the court and the United States has had nine justices ever since.


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