Supreme Court

- October 13, 2020

The Supreme Court (SCOTUS) was established by the Constitution as an essential part of the checks and balances system. It is the highest court in the country and the head of the judicial branch of government (1). The Supreme Court has the responsibility of ruling on the constitutionality of laws passed by Congress. It also has the power to check on the other two branches of government, the Executive Branch and the Legislative Branch (2). The Court holds the power of judicial review, the ability to invalidate a statute for violating a provision of the Constitution. (3). When first established, the Supreme Court judges were also responsible for serving on circuit courts in the thirteen states. There are presently nine Supreme Court justices, which has been a consistent number since 1869. With all the current buzz about the nomination of Amy Coney Barrett and the idea of Democrats, in retaliation, packing the court, I decided to take a look to see if this was an issue in the past.

The Constitution does not stipulate how many Supreme Court justices should serve at one time. It turns out that before 1869, Congress routinely changed the number of justices to achieve its own partisan political goals (3). George Washington set the number at six. These judges spent most of the year traveling to the circuit courts in each state in which two Supreme Court judges and one district court judge would preside. It didn’t seem to matter that with an even number the decisions could be a tie. At the time, the justices were all Federalists so they tended to vote the same. The first political upheaval happened when Thomas Jefferson, a Democratic-Republican was elected as President. While serving the end of his term, John Adams and his Federalist party wanted to do everything in their power to stop Jefferson from appointing a new justice. Just like today, there was the controversy of appointing a justice during an election year. By the start of the Civil War, the number of justices went to nine to accommodate the increased amount of circuit courts as the West grew. Abraham Lincoln wanted to cement an anti-slavery majority on the Court, so he added a tenth person (4). After, Lincoln’s assassination, Andrew Johnson wanted to undo the Republican’s “radical” plan for Reconstruction. In response, Congress cut the justices back to seven. This action pretty much assured that Johnson wouldn’t have an opportunity to fill a seat. In the 1930s, the Supreme Court issued rulings that undercut President Franklin D. Roosevelt’s New Deal legislation. FDR responded by proposing a bill that would allow him to increase the number of justices to fifteen. In other words, he was trying to “pack the court” with justices who would support his cause. The Senate voted it down.

So the question is if Joe Biden wins the election, will he attempt to “pack the court” in response to Trump’s conservative appointees? Is this a fitting response to Republicans blocking President Obama’s nomination of Merrick b Garland in an election year (5)? This decision, of course, will depend on whether or not the Republicans remain the majority in the Senate. The political battles of today are not much different than they’ve been in the past.

Snoozy Politics