Perspectives in History: Expanding the Supreme Court

At the turn of the 19th century, long before the fight to replace Justice Ruth Bader Ginsburg, the Founding Fathers of the United States battled over the makeup of the Supreme Court. Throughout American history — especially in times of political polarization — questions of Supreme Court appointments have been met with controversy and turmoil. 

The Constitution grants Congress the power to determine how many justices sit on the Supreme Court. While that number has remained at steadily nine for decades, Congress and presidents routinely changed or attempted to change the number of justices on the Court throughout American history in response to heated political conflicts. The first Supreme Court, created under the Judiciary Act of 1789 and signed into law by George Washington, was set at six justices.

It didn’t take long for turmoil around the Supreme Court to ensue in the new American republic. The first controversy surrounding Supreme Court nominations took place in 1800, just eleven years after the Judiciary Act was enacted. Incumbent John Adams, a Federalist, lost the presidential election to Thomas Jefferson, a Democratic-Republican. In what would be the first instance of the politicization of the Supreme Court, Federalists urged the president to find a replacement before Jefferson took office in March of 1801. In late January of 1801, Adams filled a vacancy by appointing Secretary of State John Marshall, whom Jefferson despised, as the new chief justice.

To make matters even more heated, Adams and the Federalists in Congress passed the Judiciary Act of 1801, which decreased the number of Supreme Court justices from six to five so that Jefferson would not be able to nominate a new justice when the next vacancy occurred. The act also added 16 circuit court judges and other judicial appointees (all with lifetime terms), ensuring the preservation of Federalist influence in the federal government during Jefferson’s tenure. Jefferson was furious, and, continuing the pattern of manipulating the Court for political aims, he soon pushed for the impeachment of the Federalist Justice Samuel Chase. Furthermore, after the Democratic-Republicans took control of Congress, they passed the Judiciary Act of 1802, which repealed the Judiciary Act of 1801 and eliminated Adams’ new judges. One year later, Chase warned that America risked sinking into a “mobocracy, the worst form of all government.”

During the hyper partisan Civil War era, the justice count changed every few years. By the mid 19th century the number of Supreme Court justices had increased to nine in order to cover additional circuit courts in the growing American West. By the time the Civil War came, however, the Supreme Court found itself in unstable political crosshairs. In 1857 pro-slavery Dred Scott decision, the Court ruled that African Americans were not and could never be citizens of the United States. Wanting to cement an anti-slavery majority on the Court, Lincoln and Congress added a 10th justice in 1863. 

The battle over America continued to play out in the Supreme Court when Andrew Johnson, who was pro-slavery throughout most of his career, became president after Lincoln’s assination. In 1866, Congress enacted legislation that reduced the Court’s size to seven, thereby preventing Johnson, who was trying to rapidly undue its Reconstruction plans, from nominating any justices. When Ulysses Grant succeeded Andrew Johnson, Congress increased the number of justices from seven back to nine. Grant and Congress quickly confirmed two new justices. 

In what is probably the most infamous and blatant attempt to manipulate the Court for political aims, Franklin D. Roosevelt attempted to appoint six new justices to the Court in the 1930s. During this time the Supreme Court issued a series of rulings that weakened FDR’s New Deal legislation, and beginning in May 1935, the Supreme Court struck down more legislation than at any other time in US history. FDR was outraged, believing that the Supreme Court was preventing him from doing what was needed to rescue the country from the Great Depression. In response, FDR and his Justice Department proposed a bill that would have allowed him to appoint six new Supreme Court justices, which would set the total number of justices on the Court at fifteen. The Judicial Procedures Reform Bill of 1937, known as the “court-packing plan,” proposed that the president appoint a new justice for each one who was at least 70 years old. The not-so-subtle intent was to shape the ideological balance of the Court so that it would cease striking down New Deal legislation. 

FDR’s plan was met with instant opposition. Many people, including Congress, viewed FDR’s proposal as an undemocratic power grab and worried about the precedent it would set. While FDR did ultimately lose his battle, he did, however, have precedent behind him for enlarging the bench. 

Since then, the number of Justices on the Court has remained steadily at nine. Eight decades later, however, the nation is again consumed by a battle over the Supreme Court. With heated clashes between Democrats and Republicans over who should fill the seat of Justice Ruth Bader Ginsburg — a nomination that has the potential to alter the course of American history — the future of the Court yet again remains uncertain.