Congress’ history of messing with Supreme Court size

Written by William C. Duncan

July 28, 2022

With some segments of the U.S. angry over the U.S. Supreme Court’s decision to return abortion regulation to the states, a possible response has been suggested: expand the court and allow the current president to appoint new justices to change the philosophic balance of the court.

A recent article in City Journal by Ilya Shapiro outlines the history of changes in the court’s composition. Congress clearly has the authority to change the composition of the court and has done so in the past. However, at this point the current number of nine justices has become firmly established.

Initially, there were six justices on the Supreme Court. The 1789 Judiciary Act provided for “a chief justice and five associate justices.” That number changed for political and practical reasons over the next few decades.

In 1801, following Thomas Jefferson’s election but before he took office, Congress enacted a law that came to be known as the Midnight Judges act. The law created new federal judgeships while also decreasing the composition of the Supreme Court to five justices. The 2021 report of the Presidential Commission on the Supreme Court notes the reduction “could have been justified by the fact that the Court could now function effectively with only five members. But the reduction in size was also likely attributable to the Federalists’ desire to prevent their incoming political rival—President-elect Jefferson—from filling a Supreme Court vacancy.”

That effort was futile, because in 1802, Congress repealed the 1801 law and restored the court’s size to six.

The number of justices coincided with the number of judicial circuits (regional divisions of states), and as the number of circuits increased, the number of justices increased. In 1807, Congress added a seventh justice to be appointed by President Jefferson. In 1837, two more justices were added, to be appointed by President Andrew Jackson. The commission report explains: “The new courts created also ensured that a majority of circuits would cover slaveholding territory and therefore that a majority of Justices would be friendly to slavery.” In fact, Shapiro points out, the new justices “support[ed] Roger Taney’s authorship of Dred Scott.”

Another change would be attempted a few decades later. “During the Civil War, the Republican Congress in 1863 created a new tenth circuit and added a tenth seat to the Supreme Court for its new circuit Justice, enabling President Lincoln to appoint a pro-Union, anti-slavery Justice.” This position was not filled, and fearing that Lincoln’s successor, Andrew Johnson, would change the makeup of the court, Congress reduced the court’s size to seven in 1867. Congress changed the number back to nine in 1869, after President Ulysses Grant took office.

As noteworthy as it is that Congress changed the number of Supreme Court justices seven times in the 80 years after the Constitution was enacted, it is more important to the debate today that the number of Supreme Court justices has remained nine for the last 153 years (and counting).

There was, however, one significant attempt to change the number in the 1930s. Some of President Franklin Roosevelt’s proposed reforms intended to help the country emerge from the Great Depression were blocked after the Supreme Court found they were inconsistent with constitutional provisions. So, in 1937, the president announced a plan to modify the composition of the court: “The plan was to pass a law—the Judicial Procedures Reform Bill of 1937—that would allow the President to appoint an additional justice for every sitting justice who was over 70 years of age, Roosevelt could add six of his own justices to the court.”

The idea did not go over well politically or with the American people in general. The Senate Judiciary Committee voted against it and in its report to the full Senate said: “It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” Some of the Supreme Court decisions at this time were favorable to the president’s agenda. Finally, the floor manager of the bill died of a heart attack. Taken together, all these factors doomed the plan.

Taking all of this history into account, Shapiro makes an important point in concluding his analysis: “Just as two wrongs don’t make a right, you can’t depoliticize institutions by further politicizing them.” He quotes former presidential candidate Bernie Sanders responding to the idea of expanding the number of justices on the Court: “The next guy comes in, maybe a Republican, somebody comes in, you have two more. [Eventually], you have 87 members of the Supreme Court. And I think that delegitimizes the Court.”

Although the court’s decisions can be frustrating to people on all sides of an issue, in this instance, the court has left open legislative responses in all the states. Making policy through representative institutions in 50 different jurisdictions is time-consuming and is almost guaranteed to leave some people unhappy. But the freedom that this system offers people to choose their state of residence – based in part on the laws they would prefer to live under – will arguably give more people a chance for happiness than a system that forces people to accept a single national policy.

In the end, for a nation as large and diverse as the United States, giving the 50 states the freedom to chart their own policy path is a healthy system – far healthier than restructuring the court to get a specific political result.

More Insights

Connect with Sutherland Institute

Join Our Donor Network