Vail Law: ‘Stacking’ federal courts is often-discussed, but not often done (column) | VailDaily.com

Vail Law: ‘Stacking’ federal courts is often-discussed, but not often done (column)

Rohn Robbins

There is something in the air.

Insurrection, maybe? Or perhaps just the "encampment" of our fractured era.

Several times recently, someone has asked me, "What if the Dems who now control the House wanted to expand the number of justices on the Supreme Court?" Or words to that effect.

Besides a "Huh?" there is a fatal flaw to the logic. Or perhaps two. First, if there were a "vacancy" on the Supreme Court, the president would fill it. And — for the moment anyway — the president is not a Democrat. Second, it is the Senate, not the House, that, pursuant to Article II, Section 2, of the U.S. Constitution, is the body that offers "advice and consent" to presidential appointments. And the Senate remains in Republican hands.

Those inconveniences aside, could it heave the other way? Could, say, the president determine to enlarge the Supreme Court by a justice of two, thereby ensuring a long legacy of justices with conservative bent?

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 may be, the Constitution allows for Congress to decide how many justices may sit on the Supreme Court's bench. 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."

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Starting with six

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."

Our first Chief Justice, John Jay, steered the early court but most legal scholars credit John Marshall as the Chief Justice (our fourth Chief Justice) who established what the court should be and what the Constitution really meant. Marshall served as Chief Justice from 1801-1839. As a bit of little-known trivia, the Liberty Bell cracked shortly after its arrival in Pennsylvania from England in 1752. It was, however, recast from the same metal by local tradesmen in 1753. The original inscription, "Proclaim Liberty throughout all the land unto all the inhabitants thereof" was inscribed into the bell. Oops, the "new" bell also proved defective.

A third bell was cast.

The "new, new" bell was hung in the tower of Independence Hall on June 7, 1753. During the American Revolution, in 1777, it was taken out of the tower for safe keeping when the British troops captured Philadelphia and was returned to Independence Hall in 1778.

The bell was proudly rung each year on the anniversary of American Independence until 1835. On July 8 of that year, while being rung to mourn the death Chief Justice Marshall, it cracked again and has not been recast, instead becoming an American icon, crack and all.

But I digress …

Since 1789, 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 limit 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. In 1807, Jefferson and the Congress expanded the number to seven.

In 1837, President Andrew Jackson added two more justices.

Both Jefferson's and Jackson's moves reflected the expansion of federal court "circuits" from six to seven and then seven to nine.

In 1863, during the Civil War, Congress created a 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 justices.

That only lasted three years, until 1869, when a new Judiciary Act set the number back to nine. President Ulysses S. Grant signed the legislation and filled the seats with William Strong and Joseph Bradley.

FDR's failure to stack

Since then, aside from President Franklin Roosevelt's ill-fated threat to stack the court with justices who were sympathetic to his policies, the number of justices on the court has remained stable.

The Roosevelt fiasco was hatched in 1937, after FDR won his second of four terms more than two terms is now prohibited under the 22nd Amendment (adopted in 1951). The makeup of a conservative-leaning Supreme Court hadn't changed since he took office four years earlier and Roosevelt was in a pout. To cure himself of his ill temper, Roosevelt supported a Judicial Procedures Reform Bill of 1937 to add as many as six new justices. The abridged version is that the attempted politicization of the court went down in flames and remains a stain on FDR's legacy.

Could the number change again? Sure. At least in theory.

But in practice? Well, that might be another story. After FDR's last failed attempt, it would take great chutzpah to try again.

But then, you never know. Ours are indeed interesting times.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.