The Democratic desire to pack the Supreme Court to change its ideological composition isn’t just a talking point anymore. Legislation to add four new seats will be introduced today by Rep. Jerry Nadler and Sen. Ed Markey. This trick has been tried before and it blew up in the face of one of the most masterful politicians in American history, Franklin D. Roosevelt.
The role of the Court was only lightly sketched out in Article Three of the Constitution, which did not specify the number of justices. Even the office of chief justice is mentioned only in Article One, which establishes Congress, with regard to his presiding over the impeachment trial of a president.
Originally, Congress specified that there would be six justices. But in the early days of the court, justices were required to “ride circuit”; in other words, to act as appeals judges in often far away parts of the country. At first, there were three circuits, with two justices assigned to each. But as the country rapidly expanded (there were 13 states in 1789, 26 in 1836, and 34 by the start of the Civil War) the size of the Supreme Court expanded as well. The number of justices rose to seven in 1807 and to nine in 1837. In 1863, a tenth justice was added.
Then, in 1866, not wanting President Andrew Johnson to have any appointments, Congress reduced the number of justices to seven, to be achieved by attrition. There was already one vacancy on the court and another one came in 1867, leaving eight sitting justices. But with President Johnson out of office, the Judiciary Act of 1869 raised the number to nine, where it has been ever since. It was this act that for the first time styled the chief justice as “Chief Justice of the United States,” and the other justices as “Associate Justices of the Supreme Court.”
That there should be nine justices had become canonical by the 1920s, when the great architect Cass Gilbert began to design the Supreme Court Building opposite the east front of the Capitol. It has only nine chambers for the nine justices. Adding four more would be a considerable architectural challenge that no one seems to have thought about.
In 1937, FDR, fresh off a triumphant re-election victory (he took all but two states), tried to use his greatly strengthened mandate to add more justices. His plan called for one new justice for every Court appointee who was more than 70 years and six months old, up to a limit of 15. Ostensibly this was to reduce the workload on these geriatric justices. But everyone knew that the real reason Roosevelt wanted to pack the Court was to remove it as an obstacle to enacting his expansive agenda. By 1937, the Court had already thrown out much of the New Deal as unconstitutional.
Despite the fact that Democrats held the Senate 76-20, and the House 333-102, Roosevelt suffered the worst political defeat of his presidency. A fireside chat devoted to the proposal did not move public opinion. Indeed, the proposal was immediately and deeply unpopular with the public, which thought that it meddled with the Constitution for purely partisan political purposes and would set a deeply dangerous precedent.
The Democratic chairman of the Senate Judiciary Committee, Senator Henry F. Ashurst of Arizona, adamantly opposed the bill and delayed hearings on it for fully 165 days. The report of the Committee when it finally sent the bill to the floor was scathing, to put it mildly. The bill was, the report read, “a needless, futile and utterly dangerous abandonment of constitutional principle . . . without precedent or justification.” Further, the report stated that it is, “essential to the continuance of our constitutional democracy” that the proposal “be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”
And that is exactly what happened. The bill died in the Senate by 70 to 20 votes.
Congressman Nadler and Senator Markey, it seems, don’t know much history.