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Even before the passing of Justice Ruth Bader Ginsburg, some in Washington spoke openly of increasing the number of justices on the U.S. Supreme Court.  According to the Washington Post, 11 Democratic candidates in the 2020 primaries (none of them named Biden) were open to the idea, claiming as justification the Republican Senate’s 2016 refusal to consider a Democratic president’s Supreme Court nominee during an election year.  Such talk has intensified as the President and Senate have, hypocritically to some, moved to fill Judge Ginsburg’s seat just one election cycle later.

From a legal perspective, changing the number of justices on the Supreme Court is an easy thing to do.  All that it takes is a majority in both houses of Congress to pass legislation to that effect, and the president’s signature (or a veto override, if the president resists). It has been done seven times in the nation’s history, each time for partisan political purposes. Although the practice has come to be known as “court-packing,” Congress has twice lowered the number of justices to deprive a rival party of appointments to the high court.  As a brief historical review reveals, the politics of court-packing, and its unpacking, is literally as old as the republic itself.

Article III, Section 1 of the Constitution says:  “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.”  This section also provides for lifetime tenure, while other constitutional provisions define the Court’s jurisdiction. Nowhere does the Constitution say how many judges any federal court must have.  

Congress wasted little time in filling in this gap. The Judiciary Act of 1789, passed and signed into law by George Washington just six months into his presidency, established a framework for the federal judiciary with district courts (then trial courts of limited jurisdiction), circuit courts (the original courts of general jurisdiction), and a Supreme Court, that has endured for 231 years.  As for the Supreme Court, Section 1 of the1789 law provided that it “shall consist of a chief justice and five associate justices…,” for a total of six, two for each of the three federal circuits (Eastern, Middle and Southern) that were also established by the legislation.  The bill further provided that each circuit court would be composed of the two Supreme Court justices assigned to ride that particular circuit, and a local district judge.

The Supreme Court’s membership remained at six for all of 11 years, and only until the Congress changed hands for the very first time in the 1800 election.  The Judiciary Act of 1801 was passed by Congress and signed into law during a lame-duck legislative session after the electoral defeat of John Adams, the nation’s second president, and his Federalist party. The law doubled the number of circuits from three to six, and created 16 circuit court judgeships to staff them.  It was, in effect, a post-election circuit court-packing plan, and the incoming Jeffersonian Republicans saw it as such.  See Federal Justice Center/judiciary-act-1801. The act became known as the “Midnight Judges Act,”  as the new circuit court and other positions were filled by Adams during the final two weeks of his administration, some on the last day of his presidency. Id.  As an aside, it was one of these “midnight” appointments that was at issue two years later in Marbury v. Madison. 5 U.S. (1 Cranch) 137 (1803), the opinion written by Chief Justice John Marshall that established the doctrine of judicial review.  He, too, was appointed by Adams after the 1800 election had been lost, but before a new president and Congress had been sworn in.   

While the legislation packed the trial courts, Section 3 the Judiciary Act of 1801 also sought to unpack the Supreme Court by providing “[t]hat from and after the next vacancy that shall happen in the said [Supreme] court, it shall consist of five justices only; that is to say, of one chief justice, and four associate justices.”  By reducing the size of the Court from six to five, the Federalists sought to prevent president-elect Thomas Jefferson from making an appointment to the Supreme Court in the event of a vacancy.  

The Federalists’ ploy did not work as planned, because the 1801 Act was promptly repealed by the Republicans when they took office. Their Judiciary Act of 1802 retained all six circuits established in 1801, but little else from the earlier law, and it restored the sixth seat on the Court. The Supreme Court’s roster never actually dropped below six, however, because no vacancies occurred while the 1801 law was in effect. In time, Jefferson was able to fill three seats on the Court.

The last of Jefferson’s Supreme Court appointments followed the first expansion of the court by legislation passed in 1807, ostensibly to mirror the country’s westward expansion.  With its 1807 bill, the Republican Congress added a seventh circuit composed of the then-western states of Ohio, Kentucky, and Tennessee. Because Supreme Court justices were still riding the circuit, Congress used the addition of a seventh circuit to justify the addition of a seventh Supreme Court justice for its Republican president to appoint.  

The Court’s membership remained at seven justices (one for each of the seven circuits) for the next 30 years.  Despite the admission of nine new states during these years and a rapidly growing population, no new circuits were added. As described by the Federal Judicial Center, the research and education agency of the judicial branch of the United States Government: 

Presidents John Quincy Adams [a Whig] and Andrew Jackson [a Democrat] repeatedly urged the creation of new circuits. In 1829, in his first annual message, Jackson reminded Congress that one-fourth of the nation was without access to a circuit court, the principal trial court of the federal judiciary. In 1836 and 1837, two more states entered the Union without being included within a circuit. On several occasions in the 1820s and ’30s, one house of Congress approved a bill for a new circuit and an additional seat on the Supreme Court, but parties opposing the president defeated the legislation in order to deprive the chief executive of an additional Supreme Court appointee.

https://www.fjc.gov/history/legislation/landmark-legislation-eighth-and-ninth-circuits

The logjam was finally broken by legislation enacted in 1837, which added the eighth and ninth circuits, and provided “[t]hat the Supreme Court of the United States shall hereafter consist of a chief justice, and eight associate judges . . . and for this purpose there shall be appointed two additional justices of said court, with the like powers, and to take the same oaths, perform the same duties, and be entitled to the same salary, as the other associate judges.”  This legislation, which took the Court from seven to nine justices, was passed and signed into law on March 3, 1837, President Jackson’s last day in office.  In what was arguably the first successful effort to pack the Supreme Court, Jackson sent two names to the Senate while on his way out the White House door.  Both men were promptly confirmed in a special session of the Senate as its term expired.

In this regard, these nominees fared much better than Marylander Roger B. Taney, who Jackson had earlier nominated to become Secretary of the Treasury.  Taney’s nomination was rejected by the Senate in 1835, making Jackson the first president in history to lose a cabinet pick to the confirmation process.  Later that year, Taney had to settle for an appointment to the Supreme Court when named to succeed John Marshall as Chief Justice.  See, www.Senate.gov/artsandhistroy/Nominations.htm#5.  

The Court remained at nine justices for nine circuits for the next 26 years, but it may have been Chief Justice Taney and his infamous opinion in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), that led to the next, albeit brief, expansion of the Court in 1863. President Abraham Lincoln, elected in 1861, disagreed with the decision that denied U.S. citizenship to African Americans. With the help of a friendly Republican Congress, Lincoln used the growth of California and Oregon to justify the addition of a tenth circuit and, therefore, a tenth Supreme Court justice in 1863. See, National Geographic, Why the Supreme Court ended up with nine justices—and how that could change (9/20/20). The full complement of 10 justices sat together only for one week in December 1863, however, as illness and vacancies impacted court attendance for the duration of the war. See, fjc.gov/history/legislation/landmark-legislation-tenth-circuit.  

Having 10 justices seemed like a good idea to a Republican-led Congress so long as there was a Republican in the White House.  Single party rule ended with Lincoln’s assassination in 1865, elevating his vice-president, Democrat Andrew Johnson, to the presidency. In 1866, when faced with the possibility of multiple post-war vacancies on a 10-member court that would ultimately hear challenges to its reconstruction legislation, the Republican Congress embarked on a wholesale reorganization of the federal judiciary. The 10 circuits it had blessed just three years earlier were consolidated into seven, which not only reduced southern influence on the judiciary by cramming the southern states into fewer circuits, but also provided an excuse to lower the number of Supreme Court justices from 10 to seven, again one for each circuit.  Drawing from the Federalist playbook of 1801, the 1866 legislation provided “[t]hat no vacancy in the office of associate justice of the supreme court shall be filled by appointment until the number of associate justices shall be reduced to six; and thereafter the said supreme court shall consist of a chief justice of the United States and six associate justices.”

Three years later, Johnson left office and was succeeded by Ulysses S. Grant, a Republican friendly to reconstruction. In 1869, the Congress and President Grant restored two of the three seats it struck from the Court in 1866, leaving the Court with nine justices. It has remained at that level ever since.

Over the next 151 years, the only serious attempt to pack the Supreme Court was FDR’s failed effort in 1937, when the Court stymied New Deal legislation that he believed would help the nation out of the Great Depression. The admission of 14 new states, a 750% increase in population, and the creation of four additional circuits since 1869 has not prompted serious discussion about increasing the Court’s membership.  For the first time since the end of the Civil War, partisan politics once again has.

Authorized Number  Supreme Court Justices Over The Years 

 

1789 6
1801 5
1802 6
1807 7
1837 9
1863 10
1866 7
1869 9

 

Source:  Federal Judicial Center