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Controlling the Supreme Court

This isn’t the first time an aggrieved political party has sought to add or subtract justices. Here’s everything you need to know:

Why are there nine justices?
It’s the product of the court’s historical evolution and several bitter political struggles. In the Constitution, the Founding Fathers established the court as a third branch of government to settle “cases or controversies,” but offered no details about its size. They left that determination to Congress, which set the initial template with the Judiciary Act of 1789, signed into law by George Washington. It called for six justices who would serve until they retired or died. The act created 13 judicial districts divided into three circuits, and Supreme Court justices were required to do double duty, traveling — or “riding circuit” — twice a year to serve as circuit court judges. Each circuit was assigned two justices. A growing number of circuits would affect the size of the court over time — but so would political maneuvering, which surfaced almost immediately, with Washington’s successor, John Adams.

What did Adams do?
In 1800, Adams, a Federalist, lost a re-election bid to Thomas Jefferson, a Democratic-Republican (a party opposed to centralizing power in Washington). That December, the chief justice resigned due to illness, creating an eleventh-hour opening that Federalists were eager to fill. (Sound familiar?) In a lame-duck session that extended into March, Adams nominated and Congress confirmed a replacement, John Marshall, a Federalist lawyer and politician. Congress also reduced the court size to five, to deprive Jefferson of a pick if a seat were vacated. The move ultimately had no effect, as the new Congress quickly repealed the act. And during Jefferson’s second term, in 1807, Congress added a seventh circuit and thus a seventh justice. The court expanded again in 1837, when two more circuits were created, allowing President Andrew Jackson to add two justices. That brought the total to nine, where it stayed until the Civil War. Marshall, the justice Adams shoehorned onto the bench, would serve for 34 years and become one of the court’s most influential justices. In the landmark Marbury v. Madison decision, he established the principle of judicial review — giving the court the power to nullify laws it believes violate the Constitution.

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What changes did the Civil War bring?
The first was executed by Abraham Lincoln, who wanted to establish an anti-slavery majority on the court, which was dominated by Democrat-appointed Southerners. He was especially appalled by the 1857 Dred Scott decision, which held that blacks were “so far inferior that they had no rights which the white man was bound to respect.” In 1863, the Republican Congress created a 10th circuit in California to allow Lincoln to add a 10th justice to the court. After Lincoln was assassinated and Andrew Johnson — a Unionist Democrat who opposed civil rights protections for newly freed slaves — took office, the court shifted again. To limit Johnson’s reach and prevent him from filling a fresh vacancy, Congress in 1866 cut the number of justices back to seven. That lasted just three years, until 1869, when the last court alteration was made.

What happened in 1869?
The shift was, again, politically motivated. Ulysses Grant was elected in 1868 with the backing of congressional Republicans, who decided that with Grant in power the court could use a couple of additional justices after all. They returned the number to nine, and Grant nominated two candidates who believed in the validity of paper money — just in time to reverse a previous 4-3 Supreme Court ruling that paper money not backed by gold or silver was unconstitutional. The enlarged court averted a crisis for the nation’s monetary system, but not everyone was thrilled: This “attempt to pack the Supreme Court to secure a desired judicial decision,” thundered the Daily Argus of Illinois, has “brought shame and humiliation.” It would be 60 years before another president, Franklin Delano Roosevelt, tried to change the court’s size.

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What was Roosevelt’s motivation?
The New Deal initiatives Roosevelt launched to pull the U.S. out of the Great Depression faced strong resistance in a conservative-leaning Supreme Court, which struck down a number of its key provisions. In 1937, FDR proposed a plan to add six justices to the court, one for each justice over 70. The move would bring an “infusion of new blood,” said Roosevelt, who vowed to “appoint justices who will act as justices and not as legislators.” (Again, sound familiar?) The proposal was roundly criticized — and not just by Republicans. Even Roosevelt’s vice president opposed it, and the Senate voted 70-20 against it. “Roosevelt badly miscalculated reverence for the court and its independence,” said University of Virginia presidential scholar Barbara Perry. But his threat to remake the court had an apparent impact on its rulings, which became more favorable to FDR’s initiatives. The court’s about-face was summed up by a contemporary humorist, who called it “the switch in time that saved nine.”

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Proposals for reform
Should Supreme Court justices serve for life? Reformers have long pointed out that the expected life span of justices has lengthened by several decades since the 18th century, with many modern justices occupying their powerful perch for more than 30 years. The most-oft-proposed plan would have justices serve staggered 18-year terms that would create a vacancy every two years, or two per presidential term. A 2019 poll by Marquette University Law School suggested such a shift would be an easier sell than court packing: While 57 percent opposed the latter, 72 percent favored term limits. More elaborate changes in the court’s makeup have been proposed. Under one plan, put forth in a 2018 Yale Law Journal article, all federal appellate court judges would become associate justices; panels of nine would be selected randomly and rotate regularly. Another proposal — backed by Pete Buttigieg in his Democratic primary bid — would expand the court to 15 justices: five would be allocated to each party, while those 10 would choose an additional five. “We can’t go on like this,” Buttigieg said, “where every single time there’s a vacancy, we have this apocalyptic ideological firefight over what to do next.”

This article was first published in the latest issue of The Week magazine. If you want to read more like it, you can try six risk-free issues of the magazine here.