Strangely, Americans are fighting over the number of Justices on the US Supreme Court. Many foreigners must scratch their heads, wondering why Americans are fighting over such an issue in a nation facing a deadly pandemic and economic collapse.
The reason Americans are fighting over the US Supreme Court is the amount of power it has. The US Supreme Court can strike down almost any law or government regulation by declaring it unconstitutional.
Why Americans Fear the Supreme Court
In addition, the Supreme Court can rewrite government policy. For example, in 1954, the Supremes rewrote government polices all over the country with Brown v. Board of Education. To explain, Brown v. Board made racial segregation; then the basis of many local government policies in the United States, unconstitutional.
Brown v. Board changed everything from public school funding to seating at the local lunch counter. Since Brown, American politicians and activists have become increasingly obsessed with the U.S. Supreme Court.
The obsession is reaching a boiling point with the appointment of the blatantly political Amy Coney Barrett as a Supreme Court Justice. On the left, US Representative Alexandria Ocasio-Cortez (D-New York) responded to Barrett’s appointment with a three word Tweet: “expand the court.” On the right, The American Conservative’s Rod Dreher wrote “Justice Barrett: God Bless America.”
To explain, Dreher a conservative Orthodox Christian believes Barrett; a radical Roman Catholic, will be a powerful defender of religious freedom. Additionally, Dreher could think Barrett will overturn the Roe v. Wade decision that legalized abortion nationwide. Dreher, like many Christians, thinks abortion is murder and a sin.
Whether Barrett is the champion of faith and religious freedom Dreher imagines or a corporate shill; as the Jacobian alleges is unknown. However, her appointment has set Americans at each other’s throats.
The Real Problem with Amy Coney Barrett
No matter what Barrett’s merits as a judge or a person are, the circumstances of her appointment are questionable. The US Senate held its hearings on Barrett’s appointment in the middle of the night and held a vote so rushed they held it at dinner time, our friend Michael Moore notes.
Thus Barrett’s appointment appears tainted to many Americans. Some of those people could regard Barrett’s decisions tainted because of those circumstances.
Moore also notes that U.S. Chief Justice John Roberts broke with tradition and refused to swear Barrett in. Since Roberts is an outspoken opponent of politicization of the courts. I think the Chief Justice refused to appear at the political circus President Donald J. Trump (R-Florida) held to swear Barrett in, to stay out of politics.
I have to wonder if Roberts’ absence portends a battle between the President and the Chief Justice; shades of FDR and Charles Evans Hughes. (see below). Note: to Trump, FDR, one of our most powerful and popular presidents, lost the battle with the Chief Justice.
Why Americans are fighting over the Number of Supreme Court Justices
Ocasio-Cortez hopes to nullify the conservative majority on the US Supreme Court by adding additional justices.
Ocaiso-Cortez’s suggestion is neither new nor radical. The US Constitution does not specify the number of Supreme Court Justices, Instead, Article III, Section 1 of that document vaguely states: “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.”
Thus, the Constitution leaves the number of Supreme Court Justices to Congress and the president who appoints Supreme Court Justices. Originally, there were six Supreme Court Justices. That number shrank to five in 1801 and expanded to seven in 1807.
In 1837, President Andrew Jackson (D-Tennessee) added two Justices creating the nine-justice Supreme Court. During the Civil War, the Congress briefly expanded the Court to 10 Justices to nullify the votes of pro-Confederate Southern Sympathizers on the country’s highest court.
However, in 1866, Congress reduced the Court to seven justices. In 1869, Congress changed its mind with the Judiciary Act of 1869 that restored the nine-justice court. Congress restricted the court to seven members in 1867 because its members feared that pro-Southern President Andrew Johnson (D-Tennessee) would appoint conservative justices who could overturn Reconstruction laws and nullify their political program.
Notably, Congress changed its mind in 1869 after pro-reconstruction Republican President Ulysses S. Grant (R-Illinois) took office. Thus battles over the number of US Supreme Court justices are nothing new.
Expand the Court or Pack the Court?
In 1937, President Franklin D. Roosevelt (D-New York) proposed a Judicial Procedures Reform Bill that gave the president the power to appoint up to six new Justices. FDR became upset when the Republican-leaning court began vetoing some of his New Deal policies.
Popular reaction, Congressional opposition, and criticism from Chief Justice Charles Evans Hughes and Justice Louis Brandeis killed FDR’s court-packing plan. Brandeis and Hughes were both well-known progressives. The progressive opposition made FDR’s effort to portray the Supreme Court as a pack of right-wing reactionaries look ridiculous.
Critics; such as Hughes and Brandies feared FDR, was planning to pack with the court with political hacks. Critics now make a similar charge against President Donald J. Trump (R-Florida) and his allies in the Federalist Society.
How Big Should the Supreme Court Be?
Thus, there is no Constitutional limit to the Supreme Court’s size. The nine-justice limit is an informal tradition rather than a law.
Overseas, Supreme Court sizes differ dramatically. The United Kingdom also makes do with a nine-justice Supreme Court. However, India (the democratic country most similar to the United States in size and history) has 34 justices on its Supreme Court.
From a practical standpoint, increasing the number of US Supreme Court Justices makes sense. The United States is a nation of 50 states and 331 million people.
The US Census Bureau estimates the USA had a population of 38.558 million people in 1870, when they adopted the current nine-member Supreme Court. Back then, there was one US Supreme Court Justice for each 394,777 Americans. Today there is one Justice for every 36.77 million Americans.
I have to wonder how a court of nine justices can make legal decisions for a nation of 331 million people and 50 states. The logical answer is the US Supreme Court cannot handle all the legal business a nation of that size generates.
Hence, a larger court makes sense from a practical viewpoint. Politicians, however, do not want a larger court in order to limit judicial power and magnify their influence over the courts.
Thus I think there will be intense opposition to court expansion from both sides of the aisle. Conservatives fear court expansion because they fear more progressive judges. Likewise, progressives fear court expansion because they fear more conservative judges.
Do we need to expand the Supreme Court?
Organizations such as Take Back the Court want to grow the U.S. Supreme Court. Take Back the Court’s argument is that the current US Supreme Court threatens democracy because it can legalize authoritarian policies such as voter suppression.
Several Democratic leaders including U.S. Senators Kamala D. Harris (D-California), Elizabeth Warren (D-Massachusetts), and Kirsten Gillibrand (D-Minnesota), Take Back the Court claims. However, Democratic presidential nominee Joe Biden (D-Delaware) opposes court expansion. Instead, Biden wants a commission to study reforms to the entire court system.
Personally, I favor expanding the Supreme Court by six justices to neutralize the Trump appointments. However, many Democrats are afraid of Court Expansion; possibly out of the fear Republicans could use the tactic against them.
Thus, a battle over court expansion is looming. Whether such a battle leads to a political crisis will be a matter of future history.
The Court Crisis that Led to Civil War
On the other hand, I think a political crisis over the US Supreme Court is inevitable.
We need to fear such a crisis, but a Supreme Court Crisis helped trigger the Civil War as I have noted elsewhere. To explain, in the 1850s, Democratic presidents appointed a majority of radical pro-slavery Southerners to the Supreme Court.
In 1857, the pro-slavery Supreme Court delivered a ruling most Americans opposed: the infamous Dred Scott Decision. In his Dred Scott opinion, Chief Justice Roger B. Taney found two provisions in the Constitution the Founders never mentioned.
Those provisions were an absolute right to slavery and racism. The main issue in Dred Scott was whether the federal government, state governments, and territorial governments had the power to ban or restrict slavery. Hence, Taney claimed the Constitution guaranteed a “right to slavery” in Dred Scott.
The Supremes ruled government could not ban or restrict slavery, an opinion that overturned 70 years of legal precedents going back to Thomas Jefferson’s Northwest Ordinance. Then, to make sure they enraged everybody north of the Mason-Dixon Line, the court ruled that only white people could be US citizens. However, the actual Constitution does not e mention race.
The big result of Dred Scott was that many Americans, including Abraham Lincoln, became convinced that the Southern Slave Power owned the Supreme Court. Hence, the court and its decisions were illegitimate.
Frighteningly, the thinking of Lincoln; and another Republican leader U.S. Senator H. Seward (W-New York) resembles the critique of the Supreme Court made by many modern leftists. That critique is that the court sides with large corporations and the rich against ordinary people. For a good example of this critique see Walker Bragman’s Jacobin article about Amy Coney Barrett.
We need to fear such a critique and an all-powerful US Supreme Court that is accountable to nobody because of the Dred Scott Decision’s ultimate effects. A little over four years after the Supremes handed down Dred Scott in early 1857, General P. G. T. Beauregard ordered Confederate artillerymen to fire the first shots of the Civil War in April 1861.
Americans feuding over their Supreme Court may confuse foreigners. However, history shows feuds over the Supreme Court can turn deadly and destroy America itself.