The size of the Supreme Court has been legally changed 7 times

[octoberlib]

Link to tweet

?s=20


It underwent five full legal implementations:

1789-1807: six seats
1807-1837: seven seats
1837-1866: ten seats
1866-1867: nine seats
1867-1869: eight seats
1869-present: nine seats

Thread:
And twice, legislation changed its size but was never implemented for various reasons, notably the Judiciary Act of 1801 (or Midnight Judges Act), which would have reduced its size to five upon the next vacancy but was repealed by the Judiciary Act of 1802.

Another attempt that was never (fully) implemented was the Judicial Circuits Act of 1866, which would have provided the next three justices not be replaced when they retire; however, only two seats were eliminated before the Circuit Judges Act altered the size to nine seats.


But why all the fluctuation?

Well, the way our judiciary system is set up is having three levels of federal courts.

At the district level, the lowest, there are 673 federal judges.

They're overseen by 179 appeals judges (circuit courts).

At the top: 9 SCOTUS justices.


Over time, the expansion of the United States in both land and population required a greater workload, which meant more district judges, more appeals judges, etc.

For example, the Seventh Circuit was added in 1807, along with a SCOTUS justice to match in labor.

That's how we eventually got to nine justices, to correspond with nine circuit courts. There's a lot of political maneuvering between parties here, tho, which is why we went from 7 to 10 to 9 to 8 to 9.

(Are you getting the feeling the court has always been political? Correct.)

It's also fair to note that the practice of SCOTUS justices "riding circuit", as in literally taking a tour of courts in their corresponding region, fell out of practice with time.

What didn't change is that we STILL altered the federal judiciary LONG after 1869. Like recently.

For example, in 1978, Congress authorized 117 additional district judges and 35 circuit court judges (the appeals judges) to be appointed by the President.

In 1984, there were 24 additional circuit court judges authorized.

Fast-forward to Obama's presidency, when despite Democrats winning two presidential elections in a row, McConnell and GOP Senators blocked over 100 judicial nominations by Obama.

There was "no will of the people" nonsense. He just blocked them. Didn't even consider them.

There are 870 federal judgeships that are nominated by the President and confirmed by the Senate, authorized under Article III fo the Constitution.

Through this egregious process, Trump and McConnell have slammed through 220 confirmations at those three levels. In 4 years.

For comparison, Obama put through 329 over EIGHT years through a good faith process.

For those doing the math, Trump has confirmed about 25% more federal judges annually. That's a lot. And it was done so through an intentional rigging of the process at stunning speed.

[DonaldsRump]

1. Excellent post!

Have bookmarked to revisit this after November 3 when we are in a position to fix this mess.

Thank you!

[octoberlib]

3. Another DU post made the point that there are now 13 circuits so we need 13 Justices.

We have 9 Justices now because there were 9 circuits. This is a perfect argument for expanding the court.

[DonaldsRump]

5. I saw that too

Also, as a reply to your post, Moscow Mitch informally limited the SCOTUS to 8 from Scalia's death to Gorsuch's installation more than a year later.

I sure Joe's commission will take cognizance of all of this.

[NurseJackie]

13. Aim for 15... settle for 13.

Let them think they "got" something out of the deal.

[applegrove]

2. 2016 - 2017: 8 seats

[5X]

4. and was never illegally changed.

[lagomorph777]

33. Yes, it was illegally changed by McConnell in 2016; reduced to 8 for a year.

[Hekate]

6. Well, well, well. Thank you

[Sunsky]

7. I agree with all of this

But I wish we would've waited until Nov 4th (or whenever we know the results of the election) to have this discussion. We need to make sure we will be able to get this done before making it the focal point of discussion.
If God forbid Biden wins but McConnell remains majority leader and somehow they retake the House in two years (nightmare scenario), this is exactly what they'll do and their rallying cry will be that the Democrats were the ones to suggest this in 2020 when they thought they'd control congress.

[octoberlib]

10. I actually agree with this. We gotta win first.

[Sunsky]

20. I believe this is Biden's thought process as well

He won't commit to it before he knows it's something we'll be able to do. He won't give the Republicans fodder to use against him later if things don't work as planned. Biden is an astute politician. For this reason, the Republicans are having a hard time framing him negatively, instead, they attack him by his associations.

[Sherman A1]

8. Thanks for posting

Expanding the court is long overdue.

[samnsara]

9. mitch changed it to 8 for almost a year..

[RedSpartan]

11. We should have 13 Supreme Court Justices -- one for every federal court of appeals

Simple as that.

And we need at least 100 new federal judges just to keep up with the courts' workload. This is per a report commissioned a few years ago and approved by CJ Roberts himself.

Do it. The American people are behind you.

[SKKY]

18. That seems to be the right number...

Aim for 17, be happy with 15, but be ready to settle for 13. If they ask me to write the proposal for this, that's the approach I'll take.

[infullview]

19. That's the right number we'll need

to balance the number of conservative judges with liberals+1

[bucolic_frolic]

12. There's also workload and population

More people, society more complex, more litigation, more cases.

The Supreme Court refuses to hear far too many cases. They need additional justices to meet demand.

[Dark n Stormy Knight]

14. Shhhhh. Let's let the RWers think their biased RW SCOTUS

is secure. Talk of court packing by Dems will get more of them to vote.

[lagomorph777]

22. It's court UN-packing. Moscow Mitch fudge-packed it.

[OnDoutside]

15. IF you don't hammer the shit out of the Republicans for this, they will just carry on next time.

Teach them a hard, expensive lesson by going to 21, and put a shitload of legal guards in place to ensure that they can't lie their way in this position again.

YOU WILL NEVER GET A BETTER CHANCE THAN THIS. NEVER.

[dalton99a]

28. +1

[Aussie105]

16. Answers my question.

Why 9?
Answer: no particular reason.

A Biden administration could move to add two more, to balance out the Trump appointees, or reduce it by two, and use the 'last in first out' to get rid of those Trump appointees.

[TruckFump]

21. I like that one.

Reduce it and get rid of Boof Boy and the Handmaiden.

[lagomorph777]

23. Would require 3 more to "balance" Trump appointees, or 4 more to approximate public opinion.

[jpljr77]

17. Yeah, we get it. Can we please wait a week + a day to talk about this? PLEASE?!?

[lagomorph777]

24. Because Republicans read DU and they have no idea anybody's thinking about this?

[Delmette2.0]

25. Let's compare 1869 (1870) to current day.

The 1870 census has the population at 38,558,371.
The 2020 estimate is at 331,000,000.

The Supreme Court is asked to review about 7,000 cases each year. They accept 100-150 each year. There are lots of reasons to not review each case, but I think that there isn't enough time and Justices to handle the case load.

Simple volume begs that we have more justices at all levels of the Federal Court System.

[Delmette2.0]

26. Let's compare 1869 (1870) to current day.

The 1870 census has the population at 38,558,371.
The 2020 estimate is at 331,000,000.

The Supreme Court is asked to review about 7,000 cases each year. They accept 100-150 each year. There are lots of reasons to not review each case, but I think that there isn't enough time and Justices to handle the case load.

Simple volume begs that we have more justices at all levels of the Federal Court System.

[SomedayKindaLove]

27. What is the legality of making immediate term limits for SC Justices?

Say enforcing 16 year term limits, effecting current justices, which would immediately open up several seats?

I guess what I’m asking is the “lifetime appointment” mentioned in the Constitution (and thus would require 2/3 vote in the Senate to change), or can the lifetime appointment be changed by simple majority vote in Congress?

[octoberlib]

29. I think it can be changed by Congress because they just had a bill with term limits for

Justices. I'm against all lifetime appointments. It entrenches mediocrity.

[onenote]

31. Unconstitutional

Per the Constitution, judges "shall hold their Offices during good Behaviour" -- in other words, they can only have their terms cut short by impeachment.

There are overly cute notions that this can be circumvented by keeping SCOTUS justices on the bench after a set number of years, but relegating them to appellate or district court assignments. But they weren't confirmed to be district court or appellate court judges, they were confirmed to be Supreme Court justices. Heck, being named Chief Justice requires a separate confirmation, even for a sitting Justice.

[mahatmakanejeeves]

30. A line in Gore Vidal's "Lincoln" makes a lot more sense, now that I know there were

ten justices in 1865.

[dsharp88]

32. So it can be DECREASED

Last edited Tue Oct 27, 2020, 09:10 PM - Edit history (1)

as well as increased. Can we drop it to seven while removing the last two appointees? You can't call it Court packing if you do that.