Article III of the United States Constitution says the judicial power of the nation “shall be vested in one supreme court.” It doesn’t say how many justices should serve on the court.
Since 1869, there have been nine justices on the Supreme Court. Originally, in 1789, Congress set up a court with one chief justice and five associate justices. The six member court grew to seven in 1807, to nine in 1837, and to 10 in 1863, during the Civil War.
In 1866, Congress passed a law that would have reduced the court to seven members as justices retired, though it only fell to eight by 1869, when the number was set, until now, at nine.
When Franklin Delano Roosevelt was president, much of his New Deal legislation was found to be unconstitutional by the Supreme Court. The majority of the court were conservatives appointed by Republican presidents, so in 1937, after his landslide re-election, Roosevelt proposed that the court be expanded to 15 judges so he could appoint more judges who would hopefully vote to uphold New Deal legislation.
A couple of months later, however, before his proposal came to a vote in Congress, two Supreme Court justices came over to the liberal side and the court upheld as constitutional the National Labor Relations Act and the Social Security Act. The “court packing” bill was dropped.
By 1942, all but two of the justices were Roosevelt appointees and the New Deal was safe.
We are now facing a similar situation. President Trump has appointed two new Supreme Court justices, Neil Gorsuch and Brett Kavanaugh, both conservatives, and the court has taken a more conservative course, usually by 5-4 votes.
For example, this June, in the case of Rucho v. Common Cause, the court ruled 5-4 that the Constitution does not prohibit extreme partisan gerrymandering.
Last year in Janus v. AFSCME, the court ruled 5-4 that government workers who choose not to join unions may not be required to help pay for collective bargaining.
In Trump v. Hawaii, the court ruled 5-4 that President Trump had the legal authority to restrict travel from several mostly Muslim countries.
In Husted v. A. Philip Randall Institute, the court upheld Ohio’s aggressive program 5-4 to purge its voting rolls.
In Jennings v. Rodriguez, the court ruled 5-4 that immigrants held in detention facilities have no right to a bail hearing.
The give-man majority in all these cases — Roberts, Thomas, Alito, Gorsuch and Kavanaugh — were all appointed by presidents Bush I, Bush II and Trump. The four-person minority — Ginsburg, Breyer, Sotomayor and Kagan — were appointed by presidents Clinton and Obama. Coincidence? I think not.
A new group called Pack the Courts is lobbying for a plan to add four seats to the Supreme Court. The group’s director, Aaron Belkin, says, “We are in a dire democracy emergency in which the Supreme Court has belonged to the Republican Party and donor class.”
He says that if Democrats are to achieve their policy goals on issues such as the environment, immigration and health care, “you have to figure out some way to deal with a hostile Supreme Court.”
Many of this year’s Democratic candidates for president — Kirsten Gillibrand, Kamala Harris and Elizabeth Warren — have expressed tentative support for a plan to add four more seats to the Supreme Court.
Beto O’Rourke and Pete Buttigieg have embraced the concept of expanding the court to 15 members, with five nominated by a Republican president, five by a Democrat and five by unanimous consent of the other 10.
In March, President Trump said he would not support increasing the size of the court. “The only reason (Democrats are) doing that is they want to try and catch up,” he said. “So if they can’t catch up through the ballot box by winning an election, they want to try doing it in a different way. ... It’ll never happen.”
James H. Manahan is a Harvard Law School graduate and was named one of Minnesota’s Top Ten Attorneys. He now handles family law, wills and probate in the Lake County area, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. He can be reached at firstname.lastname@example.org or jamesmanahan.com.