More Robes than Ric Flair

Last week I wrote about a bill introduced by Democratic legislators that would propose to expand the Supreme Court from 9 justices to 13. While this seems like an unprecedented move, it is certainly not the first time the number of justices on the Supreme Court fluctuated.

While many people assume the number of justices is spelled out in the U.S. Constitution, Congress is actually in charge of deciding the size of the Supreme Court. It did so for the first time when it adopted the Judiciary Act of 1789. George Washington signed the Act into law, which set the number of Supreme Court justices at six.

In addition to the Supreme Court, there were also 13 federal circuit courts – one for each state. These courts were presided over by three judges, one from the state and two Supreme Court justices. The Judiciary Act of 1789 divided these circuit courts into three regions – Eastern, Southern and Middle – and two justices were assigned to each region.

A month before the 1800 election, Chief Justice Oliver Ellsworth resigned from the Court due to health concerns. Similar to the controversies in 2016 and 2020 of a sitting president filling a justice’s vacancy, President John Adams quickly nominated John Marshall for the seat. Congress confirmed Marshall on February 4, 1801, after Adams lost to Jefferson, but before Jefferson took office because inauguration day was on March 4 prior to 1933.

Upset over his loss, while still in office, Adams and the Federalist-controlled Congress adopted the Judiciary Act of 1801. A political maneuver reminiscent of the world today, the Act reduced the number of Supreme Court justices from six to five, deliberately decreasing the likelihood that Jefferson could nominate a new justice during his term in office. Once elected, though, Jefferson and his new Congress quickly repealed the Act, bringing the number of justices officially back to six.

After the U.S.’s expansion into the West during the 1800s, the number of Supreme Court justices had increased to nine to cover the new additional circuit courts. After President Lincoln was elected, however, he added a 10th justice in 1863 to gain an anti-slavery majority in the Court after his disappointment in the Court’s 1857 Dred Scott decision.

In 1866, the Republican-controlled Congress clashed with Lincoln’s successor, Andrew Johnson, so they passed legislation to bring the number of justices back to seven. This limited Johnson’s power and essentially prevented him from filling a vacant seat. However, when Republican Ulysses S. Grant was elected in 1868, Congress passed a law the following year to increase the number of justices from seven back to nine. Grant quickly filled the new seats.

This law from 1869 was the last time the number of Supreme Court justices changed. But it wasn’t the last attempt.

After the Supreme Court issued a series of rulings that disrupted some of Franklin D. Roosevelt’s New Deal legislation in the 1930s, he introduced a bill that would have allowed him to name six new Supreme Court justices to reach a grand total of 15.

This resulted in FDR’s detractors using the phrase “packing the court” for the first time. Despite his popularity, Roosevelt’s proposal was shot down in the Senate by a vote of 70-20.

The concept of court packing reminds me of my behavior when I played my sister in ping pong. If I lost, I claimed we were playing the best of 3 games. If I lost twice, I cried it was the best of 5, and so on. Where does it end?

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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.

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