Why Nine Justices? Court Packing's History and Future

in 1937 president roosevelt had a problem a majority on the supreme court led by these guys the conservative wing known as the four horsemen had spent the previous years striking down many of the laws passed as part of roosevelt's new deal so fdr decided his next reform would be the court itself for each justice over the age of 70 and there were i think six of them at the time he would add a new justice to the court so that meant he was going to massively transform the court and put on loyalists to him congress overwhelmingly voted down his proposal and no president has tried to increase the number of justices on the court since but what does the constitution say when drafting the constitution the framers knew the new country needed a supreme court to weigh in on legal challenges to the nation's laws but they didn't know exactly to what extent it would provide a constitutional check on congress and the executive branch in fact it wasn't until 1803 in marbury versus madison that the court first ruled a government action unconstitutional officially establishing the act of judicial review so in the beginning the framers kept the details about what the court should look like pretty vague article 2 of the constitution gives the president the power to nominate a justice and the senate the ability to confirm him or her and article 3 which establishes the judiciary says only that justices hold their offices during good behavior we'll get back to what this means later and that they get a salary that can't be diminished that's it they left all the other details up to congress the size of the supreme court is actually up to congress to specify by law that actual number is not in the constitution noah feldman literally wrote the book that law students use to learn constitutional law he says the framers wanted to give congress the flexibility to shape the court in response to the needs of a growing nation the judiciary act of 1789 one of the first important laws that was passed specified the size of the supreme court and they actually started with six justices at the time from nearly the beginning politics played a role in shaping the size of the court during his lame duck session president john adams signed a law bringing the court down to five justices the following year thomas jefferson who felt the move was an attempt to limit his power signed legislation to reverse adams's law before it could go into effect over the next 60 years congress largely tied the number of justices on the supreme court to the number of circuit courts in the rapidly growing country in 1863 with the creation of the 10th circuit the court got its 10th justice but in the wake of abraham lincoln's assassination congress trimmed the court to seven justices to prevent president andrew johnson from loading it with southern democrats a few years later the new republican president ulysses s grant set the number back to nine under the judiciary act of 1869. that's where things stood until fdr but we cannot yield our constitutional destiny to the personal judgment of a few men who being fearful of the future would deny us the necessary means of dealing with the present fdr's court packing plan ran into two major problems the first was that the sitting justices including moderate and liberal justices were deeply opposed to it because they thought it would delegitimate the institution the second is that lots of democrats especially in the senate were sensitive to the charge that roosevelt was basically trying to make himself a dictator the democrats already controlled the house and the senate and they controlled the presidency and if they also control the supreme court there would be no check on his power at all i shall not be a party to breaking down the checks and balances of the constitution this is more power than a good man should want or a bad man should have roosevelt's plan was defeated in congress but that doesn't mean his gambit was a failure on the next round of challenges to the new deal that made it to the court justice owen roberts left the four horsemen and voted with the court's liberal wing while roberts never explained his change some historians speculate he was swayed by fdr's attempt the so-called switch in time that saved nine was the ultimate compromise it kept the supreme court intact and saved the agenda of an ambitious president no president has tried to change the size of the court since it's really really really hard to pack the court don't take up a plan to do court packing unless you have a lot of confidence that you have the votes in advance to get it done it's just extremely hard to do one big problem with expanding the court is that there's nothing stopping the next president and congress from doing the same then the next president adds more and the next president after that before long the supreme court starts to look like this and now you're a did not account oh no i ain't oh yes you are oh no i ain't so what other options do presidents in congress have to alter the makeup of the court one idea is term limits for justices there's just one problem that line from the constitution the one that says judges shall hold their office during good behavior it doesn't say it directly but good behavior has always been interpreted to mean that judges would serve for life unless they were impeached the idea was that a justice should be independent and insulated from political pressure the problem is that it's made supreme court nominations rare and now they're highly politically charged one proposal gaining traction is to create 18-year term limits for supreme court justices staggered so a new justice is confirmed every two years proponents say this could work by giving the retiring justice senior status and rotating them to a lower court in fact three members of congress have introduced legislation that would do just that but noah feldman has his doubts to my mind that represents a very problematic and doubtful reading of the constitution and of its intent it doesn't seem to be consistent with our tradition of how we've come to understand supreme court tenure ultimately the best approach might just be the old-fashioned one wait until a seat opens up it's very hard to use ordinary statutory reforms to change an institution that has its roots in the constitution if you ask me is there a mechanism of reform that stands out as simple and easy and that wouldn't break the institutional capacity of the court i don't see one at the moment you

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Length: 7min 9sec (429 seconds)

Published: Tue Oct 20 2020