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Packing the US Supreme Court: a bit of history




Donald Trump has nominated Judge Amy Coney Barrett to fill the vacant seat on the Supreme Court occasioned by the death of Justice Ruth Bader Ginsburg. If Judge Barrett is confirmed by the Senate, there will be six justices serving on the court appointed by Republican presidents and three appointed by Democrats — a 2-1 majority.

Stuart E. Seigel is Senior Consultant to The Dilenschneider Group. He has served as Chief Counsel of the Internal Revenue Service and in several other posts in the Federal Government. He also engaged in the private practice of law in Washington and New York

Although uncertain, a Republican majority could endure for decades. If the Democrats prevail in the upcoming election, to remedy this situation they could attempt to “pack the court”; that is, increase the size of the court to accommodate a number of sufficient new appointees to give the Democrats a majority of sitting justices. That possibility has already been voiced by several Democratic lawmakers.

The Supreme Court was established by specific provision in the Constitution. It is the only federal court so created. Article III of the Constitution provides:

“The judicial Power of the United States, shall be vested in one Supreme Court, and in such other inferior Courts as the Congress may from time to time ordain and establish.”

Article III does not address the size of the Supreme Court, thereby leaving that to congressional determination. And the Congress has, in several enactments from 1789 through 1869, set the number of justices to serve on the Court, ranging from a low of five to a high of ten.

Congress’s last stab at this occurred in the Judiciary Act of 1869, which fixed the number of justices at nine. So it has remained for 151 years. And counting.

In all that time there has been only one notable attempt to increase the size of the court — President Franklin Delano Roosevelt’s famous court-packing plan, which occurred early in his second term. It failed. Surprisingly, because of strong opposition by members of his own party.

The year 1932 was the height of the Great Depression and, in that year’s election, FDR and the Democratic Party were swept into power. He defeated President Herbert Hoover by some seven million votes, carrying 42 of the 48 states. The Democrats also won control of the House of Representatives and the Senate by large majorities.

The fly in the ointment was the Supreme Court. Roosevelt inherited a court composed of seven Republican appointees and two Democrats. During his first term, he spearheaded a Democratic Congress that enacted many New Deal pieces of legislation, only to see them overturned by the Supreme Court.

FDR was frustrated and angered. He was not given the opportunity to appoint a Supreme Court justice during that first term and none too many prospects appeared to be on the horizon. His solution? Pack the court.

At that time, Supreme Court justices could retire with a pension at age 70. Then, as now, justices often served beyond normal retirement age, health permitting. FDR’s plan was to enact legislation that would add an additional justice for each one who reached the age of 70 and six months, but had not retired. Thus, the court over time would be packed with justices, in addition to the mandated nine, who would be supportive of the New Deal. However, as noted, he was unable to secure the concurrence of the depth and breadth of his own party.

Roosevelt’s vice-president, John Nance Garner, opposed it. During a Senate debate on the measure, he was seen in the rear of the chamber holding his nose and turning thumbs down.

The Democratic chairman of the Senate Judiciary Committee, Henry F. Ashurst, delayed hearings for almost six months, commenting: “No haste, no hurry, no waste, no worry.”

And the powerful Democratic chairman of the House Judiciary Committee, Hatton W. Summers, refused to endorse the Bill.

The only time the Bill came up for a vote was in the Senate on a motion to recommit it to committee — nice words meaning to bury it. The motion carried by a vote of 70 to 20. Roosevelt could come up with only 20 votes out of a pool of 68 Democratic senators!

FDR, during his 12 years in office, ending with his death in 1945, ultimately appointed eight justices to the Supreme Court. He may have won the war of the sheer number of appointees, but he decisively lost his most important judicial battle.

Why this intraparty opposition to fixing the court to evade judicial rejection of New Deal legislation which they supported widely? It was not that there was opposition to modifying the size of the Court as such, which was legally permissible. Rather, it was for the purpose of employing that option for purely political ends, which would be at odds with the intent of the framers of the Constitution in establishing the Supreme Court as the third branch of government to provide a check on and monitor of the other two; the executive and legislative branches.

To support Roosevelt’s packing proposal would cause the judiciary to become a mere political tool to be manipulated by changing administrations to make the court conform to their political objectives rather than perform judicial functions necessary for the proper and needed governance of the nation.

Principle prevailed over politics.


Stuart E. Seigel is Senior Consultant to The Dilenschneider Group. He has served as Chief Counsel of the Internal Revenue Service and in several other posts in the Federal Government. He also engaged in the private practice of law in Washington and New York




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Published October 16, 2020 at 1:16 pm (Updated October 16, 2020 at 7:16 pm)

Packing the US Supreme Court: a bit of history

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