Agonistes
During the partisan tensions of Reconstruction, Congress declared that the next three justices to leave wouldn’t be replaced, thereby blocking any “Soft on the South” ruling President Andrew Johnson might desire and leaving the Court at seven seats. After Johnson’s rocky tenure – he was impeached and came within one vote of being removed from office – Congress fixed the number of justices at nine. That number has now endured for 150 years. Since then, the paradigmatic attempt at court-packing was FDR’s judicial “reform” bill of 1937. The president had just been reelected handily – without any social-media help from Stalinist Russia – but was frustrated by the Supreme Court’s refusal to “like” the New Deal. The larger issue is that, even if Democrats win back both the White House and Senate next year – a big if, particularly given an unfavorable Senate map – they would have to do away with the legislative filibuster to pack the Supreme Court. Roosevelt proposed adding a new justice for every old fogey, a formula that would have allowed him to add six black-robed henchmen. This plan met heavy opposition from Congress. It didn’t get a vote, despite Democratic super-majorities that make
was to strengthen the power of the Federalist- dominated judicial branch to thwart the incoming Democratic-Republican president, Thomas Jefferson. Outgoing president John Adams rushed to fill new judgeships created by that “midnight judges act.” Some of those judicial commissions didn’t get delivered until after the inauguration of Jefferson, who declined to honor them. That led to the foundational case of American law, Marbury v. Madison , which established “judicial review,” the concept that the Supreme Court can decide whether government actions violate the U.S. Constitution. Congress restored the Court to six seats in 1802 and added a seventh seat a few years later, in part because Jefferson wanted to check the Federalist Chief Justice John Marshall. This early packing failed because Marshall, the “Great Chief,” kept convincing new justices to see things his way. Eighth and ninth seats were added in 1837 to allow Andrew Jackson to push through his “Make America Great Again” policies. One of Jackson’s previous appointees, Roger Taney, would author the Dred Scott fugitive-slave ruling, with the support of justices appointed to the two new seats. Congress created a 10th seat in 1863 to assist Abraham Lincoln’s somewhat novel wartime constitutional interpretations. But that seat was never filled, and we’ve never actually had more than nine justices.
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May 2019
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