Several years ago, Jeffrey Toobin (who has been in the news of late for reasons he would rather not) penned a book entitled “The Nine.” It was, if you will, a layman’s guide to the Supreme Court and was conspiratorially subtitled “Inside the Secret World of the Supreme Court.” I suspect it was an editor’s idea. It was an easy and entertaining read.
Why was it entitled as such? Well, I can’t speak for Toobin but I rather strongly suspect because there are, um… nine of them? Brilliant, no? But must that be? Is nine somewhere set in stone or at least ensconced in the United States Constitution?
Well, not exactly.
If you have been paying attention — and who really isn’t these days? — President Trump, who as you read this may or may not be heading for the White House exits — has “presidented” during an auspicious time. The open seat left by the death of Justice Antonin Scalia in the last year of the Obama administration was quickly filled by Colorado’s own Neil Gorsuch. Then Anthony Kennedy retired and his seat was filled by the contentious Brett Kavanaugh. And in the waning days before the recent election, the Notorious Ruth Bader Ginsberg had the temerity to pass and Amy Coney Barrett was quickly ushered into RBG’s still-warm seat.
The stars lined up in such a way that Trump has filled three Supreme Court seats, fully one-third of the starting lineup (and, yes, this is a euphemism; there are no players at the court on the reserve squad).
The last — the rushed confirmation of Justice Coney-Barrett in the wee hours just before the presidential election (many would say rightly) — has got undies in a bunch. Most of them, the sensible underclothing of the Dems.
In the Newtonian physics of Washington politics, what has been muttered, threatened, and discussed is the “equal and opposite reaction” of stacking the court if, as you read this, there is a new sheriff in town wearing a 10-gallon Democratic hat.
Biden has been asked this: If the Dems succeed to power, will they “stack” the court? And, for our purposes, if they do not, could those in power — left, right, or somewhere in the bleachers, do so?
In its simplest iteration, what “stacking” means when it comes to the Supreme Court, is adding more justices. Instead of nine could we have … say, 11, 13, 27, or whatever other odd number suits one’s fancy?
Perhaps. Could the president determine to enlarge the Supreme Court by a justice or three, thereby ensuring a long legacy of justices with a less conservative bent?
How we got here
Most folks are surprised to learn that the number of justices — nine — is more a matter of tradition than Constitutional imperative. In fact, rather than dictating how many justices there must be, the Constitution allows for Congress to decide how many Justices make up the A Team. Article III, Section 1, yields broad discretion to the Congress, holding that, “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.”
The Judiciary Act of 1789 established the first Supreme Court, with six Justices. “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the supreme court of the United States shall consist of a chief justice and five associate justices…, and shall hold annually at the seat of government two sessions, the one commencing the first Monday of February, and the other the first Monday of August.”
Since 1789 (the year of the Judiciary Act), Congress has changed the maximum number of Justices on the Court several times. In 1801, President John Adams and the lame-duck Federalist Congress, in an attempt to hamstring incoming President Thomas Jefferson’s appointments to the high bench, passed the Judiciary Act of 1801 which reduced the Court to five justices. Jefferson and his Republicans soon repealed the Act, quickly putting the number back to six. Then in 1807, Jefferson and the Congress expanded the number to seven.
In 1837, President Andrew Jackson added two more Justices.
Both Jefferson’s move and Jackson’s reflected the expansion of federal court “circuits” from six to seven and then seven to nine. A “circuit” is a geographical area covered by a federal appellate court that hears appeals and whose rulings may be appealed to the Supreme Court of the United States
In 1863, during the Civil War, Congress created the 10th circuit and the Court briefly had a 10th Supreme Court Justice. However, after the war, Congress passed legislation to reduce the court to seven. That only lasted three years, until 1869, when a new Judiciary Act set the number back to nine.
Since then, aside from President Franklin Roosevelt’s ill-fated threat to stack the court with justices more friendly to his proposed agenda in 1937, the number of justices on the court has remained at nine.
Could the number change again? Yeah sure. At least in theory. But in practice? Well, that might be another story. After FDR’s last failed attempt, it would take great hutzpah to hoist that flag again.
But then, ya never know … It’s 2020 after all.
We do, indeed, live in most interesting times.