RIGHT-SIZING THE SUPREME COURT: A HISTORY OF CONGRESSIONAL CHANGES.

• Author: Blumm, Michael C.

ABSTRACT

Since the Republican Senate refused to consider President Obama's nomination of Merrick Garland to the Supreme Court in 2016--coupled with the Trump Administration's success in filling that seat with Neil Gorsuch, followed by the appointments of Brett Kavanaugh and Amy Coney Barrett--there has been widespread interest in how to balance a suddenly solidly conservative Court majority, one likely to remain so for decades. One way to do so is to expand the size of the Court, an issue the Constitution left to Congress, which exercised that authority repeatedly during the Constitution's first eighty years. This article examines those mostly forgotten congressional changes to the Court's size as well as Congress's more notorious failure during the New Deal. The article reveals that the successful expansions were often due to population growth, but were always the product of political calculations. Since the U.S. population is now nearly ten times larger than it was when Congress last changed the Court's size, reconsidering the Court's size may be an issue ripe for congressional consideration, should the political winds suggest that is possible.

CONTENTS INTRODUCTION I. THE CONSTITUTION AND THE JUDICIARY ACT OF 1789 A. The Constitution B. The Judiciary Act of 1789 II. THE JUDICIARY ACTS OF 1801 AND 1802 A. The Judiciary Act of 1801 B. The Judiciary Act of 1802 III. THE 1807 AND 1837 JUDICIARY ACTS A. Adding a Seventh Circuit B. The Eighth and Ninth Circuits IV. THE CIVIL WAR AND RECONSTRUCTION ERAS V. THE NEW DEAL ERA CONCLUSION ADDENDUM INTRODUCTION

The Republican Senate's successful maneuvering in 2016 to deny President Obama an opportunity to fill Justice Antonin Scalia's seat, (1) followed by the rushed confirmation of Justice Amy Coney Barrett to replace Justice Ruth Bader Ginsberg in 2020, (2) prompted widespread calls for reforming the Court, from calling for a code of ethics to increasing public access to the Court's proceedings. (3) Among the more prominent suggested reforms are the imposition of term limits (4) and changing the size of the Court to respond to its increasingly partisan makeup. (5) In response to recent interest in Court reforms, in April, 2021 the Biden Administration created a bipartisan commission made up of prominent attorneys, former judges, and legal scholars (6) to evaluate issues facing the federal judiciary. (7) In the executive order establishing the program, President Biden requested that the Commission issue a report by the end of 2021. (8) The report was to analyze historical and contemporary debates surrounding the Supreme Court's role in the federal system, including how its members are nominated and appointed, but curiously was not expected to produce specific recommendations. The report addressed several proposed modifications for the size and structure of the Court, focusing on the merits and legality of the recommended reforms. (9) Whether the Commission will lead to any lasting change is quite unclear. However, the idea is not new. There is a long history of interest among the political branches to change the Court's composition and its procedures. (10)

In April 2021, a bill that would add four members to the Supreme Court was presented by House Judiciary Committee Chair Jerry Nadler (D-N.Y.) along with co-sponsors, Representatives Hank Johnson (DGa.) and Mondaire Jones (D-N.Y.). (11) Senator Ed Markey (D-Mass.) simultaneously introduced the "Judiciary Act of 2021" in the Senate. (12) The House Judiciary Committee's press release emphasized Nadler's remarks that the bill would conform the number of justices to the number of circuits, as Congress had done from the creation of the Court until the time of the Civil War. (13) Neither Senate Judiciary Chair Dick Durbin nor House Speaker Nancy Pelosi expressed immediate support for the bill, telling reporters that they would wait, for the recommendations of the presidential commission. (14) With Democrats' thin majority in the Senate, any reluctance from leadership to move the bill forward would likely kill the bill's chances of being enacted.

Given these recent developments, it seems propitious to survey the history of successful congressional efforts to change the size of the Court, which began in the Founding Era and continued throughout antebellum America. The Court's size ranged from six members to ten before settling on nine in 1869. (15) The size of the Court was a function of the political dynamics of the day, as Congress enlarged the Court to enable favored presidents to appoint new members and constricted the Court to deny appointments to those Congress disfavored. (16) The politicization of the size of the Court continued largely unimpeded until President Franklin Roosevelt and his New Deal ran into the well-known conflict with a Republican Supreme Court, as discussed in Part V of this article. Parts I-IV explain the expansions and contraction during the 19th century. The article concludes that, despite the apparent lessons drawn from the so-called "court packing" efforts of FDR, political control of the size of the Court is unassailable. There may be reasons to retain the current nine-member Court, but they are clearly not of a constitutional or historical nature.

1. THE CONSTITUTION AND THE JUDICIARY ACT OF 1789

   1. The Constitution

      Article III of the Constitution provided only a rough outline of the federal judiciary. Significantly shorter than Articles I and II, Article III established "one supreme Court" and any "inferior Courts as the Congress may from time to time ordain and establish." (17) Although the Framers decided early in the constitutional debates in Philadelphia to establish a Supreme Court, (18) they did not establish the size of the Court. Instead, the constitutional debates discussed how the federal judiciary would interact with the other two branches of government, (19) the justices' tenure and compensation, (20) and the judiciary's jurisdictional bounds. (21) The most contentious debate concerning the judiciary was whether to establish lower federal courts. (22)

      Federalists pressed for the creation of lower federal courts to serve as the principal trial courts for legal disputes under federal purview. (23) In letters from Philadelphia, delegates acknowledged pressure to create a system of government that balanced the power of individual states with that of the new nation. (24) After the Constitution was sent to the states for ratification, Anti-Federalists, alarmed at the possibility that federal courts might usurp the responsibilities of state courts, vehemently opposed the establishment of lower federal courts. (25) Supporters like Alexander Hamilton maintained that, compared with the legislative and executive branches, a federal judiciary would "be the least dangerous to the political rights of the constitution." (26) The drafters decided not to resolve the issue of the size of the Court, leaving the matter to Congress. (27)

   2. The Judiciary Act of 1789

      The nation's new federal government officially began on March 4, 1789. (28) The judiciary was immediately at the top of the first Congress's agenda. The first bill introduced in the Senate would become the Judiciary Act of 1789. (29)

      The First Congress debated whether to establish lower federal courts and the size of the Supreme Court, deciding on the unlikely number of six justices. (30) Six was the choice because the bill divided the country into thirteen district courts and three geographical circuits. (31) Each district bench would have one federal judge who would primarily hear admiralty and maritime cases, as well as other minor suits. (32) Unlike appellate circuit courts of the modern judiciary (which were established in the Judiciary Act of 1891), the original circuit courts exercised only limited appellate jurisdiction over the district courts. (33) Their primary function was instead to serve as the principal federal trial courts of the day. (34) Each circuit court consisted of a panel of one local district judge and two travelling Supreme Court justices. (35) Consequently, part of the job description for the Chief Justice and the five associate justices was to "ride circuit." (36) Two justices assigned to each of the three circuits made a six-justice Court a reasonable choice, especially since it saved money by making separate circuit-court judges unnecessary. (37) The unstated assumption was that the Supreme Court's size was more a function of its role in overseeing lower federal courts than of the danger of deadlocks over doctrine. (38)

      Appointing the district judges and Supreme Court justices was a task for the newly inaugurated President George Washington, with the consent of the Senate. (39) Washington quickly nominated John Jay for Chief Justice on September 24, 1789, the day he signed the Act. (40) The Senate confirmed Jay just two days later. (41) Thus, two years after the Framers signed the Constitution, and fifteen months after ratification, Article III's sketch of the federal judiciary began to be fulfilled.

2. THE JUDICIARY ACTS OF 1801 AND 1802

   1. The Judiciary Act of 1801

      Circuit riding was arduous. Both physically and mentally taxing, the obligation quickly became unpopular among the justices. Justices complained that it required traversing as many as 1,900 miles (on bad roads and inconsistent ferries) within a single circuit. (42) A number declined judicial nominations or resigned from the bench rather than continue the odious duty. (43) Those who remained on the Court wrote President Washington on at least two occasions, in 1790 and 1792, expressing their intense dislike of the practice. (44) All six justices also penned their disapproval to Congress in 1792, imploring the legislature to drop the circuit-riding requirements established by the 1789 Act. (45) These efforts proved to be only somewhat successful: in 1793, Congress responded by reducing the number of justices required to visit each...