Supreme Court Building external shots (Richard Jenrette, Richard Jenrette/CNN)

Richard Jenrette, CNN

Why exactly does the US Supreme Court have 9 justices?

By Carter Williams, KSL.com | Posted - Apr. 29, 2021 at 12:16 p.m.



Editor's note: This article is a part of a series reviewing Utah and U.S. history for KSL.com's Historic section.

SALT LAKE CITY — President Joe Biden issued an executive order earlier this month that created a commission to review possible U.S. Supreme Court reforms, including the potential of expanding the number of justices in the court.

The idea, of course, has led to plenty of debates that began before and after the order was signed April 9. Sens. Mitt Romney and Mike Lee supported a bill in 2019 that would have permanently kept the number of Supreme Court justices to its current number: nine. It's been that way since 1869.

Romney again backed similar legislation in January. A week after Biden signed his order, Lee called the idea of "court-packing," or extending the number of justices, as "an act of arrogant lawlessness."

But this debate isn't new at all. This year is shaping up to be the biggest challenge to the number of Supreme Court justices that's emerged in Washington in 84 years.

Here's a look into the history of the court and what happened the last time the number was strongly challenged.

Why nine?

The Supreme Court has had nine justices since 1869, but that wasn't always the case. In fact, the number of justices in the court fluctuated fairly often between its inception and 1869.

Of course, the story of the court dates back to 1787 and the founding of the U.S. government system as we know it today. Article III of the Constitution set aside judicial power; two years later, the Judiciary Act officially created the government body.

The first court featured just six justices. As noted by History.com, six made sense because the Judiciary Act divided the country's circuit courts into three regions and two justices could preside over every region.

The number of justices serving in the Supreme Court eventually changed six times before 1869, according to the Supreme Court. It once had a low of five justices during John Adams' presidency and 10 under Abraham Lincoln's presidency.

Most of these tweaks were partisan in nature. Adams, for instance, reduced the number of justices on his way out the door following a controversial election in an attempt to make it more difficult for his successor, Thomas Jefferson, to nominate anyone to the court, the National Constitution Center wrote. Jefferson, with the help of Congress, repealed the act shortly after he took office and a seventh justice was also added during his presidency.

There were nine justices in the Supreme Court by the Civil War era. Lincoln added a 10th justice in 1863 to help ensure his anti-slavery measures had support in the courts, History.com added. Congress cut the number back to seven after Lincoln's death after squabbles with President Andrew Johnson and eventually settled on nine again in 1869 under President Ulysses S. Grant.

Justin Collings, the associate dean for research and academic affairs and a professor of law at BYU's J. Reuben Clark Law School, explained there really wasn't anything "magical" about the number nine and nothing much to explain why Congress settled on it.

Is it because it was decided about the same time as baseball — a sport with nine players on a field — swept across the country or because it was a solid odd number to avoid possible decision ties? We'll likely never know, he said.

He added that there really isn't any reason it hasn't changed either. The number has been a constant over the past 152 years, but that's not to say Biden's order is the first time it's been challenged.

The last major challenge to the number and how Utah reacted to it

President Franklin D. Roosevelt undoubtedly tested the number of Supreme Court justices more than anyone since 1869.

In 1937, after winning reelection and after years of frustration with the Supreme Court holding up pieces of his policies, Roosevelt pushed for a piece of legislation that would have quickly extended the number of Supreme Court justices to 15.

More specifically, he called for a new justice to the Supreme Court for every justice 70 or older unless a justice retired, according to the Federal Judicial Center. Roosevelt argued the justices just didn't have the energy to keep up with the Supreme Court duties so they needed help, Collings explained; however, it was obvious to almost everyone what the real motive was. It just so happened that six of the nine justices at the time fell into that category.

"Roosevelt's motive was clear — to shape the ideological balance of the court so that it would cease striking down his New Deal legislation," the Federal Judicial Center wrote.

Despite decisive reelection and a Democratic stronghold in both chambers of Congress, the bill was received relatively poorly regardless of party. An Associated Press article that landed on the front page of the Salt Lake Telegram on Feb. 5, 1937, called it an "unexpected request" that "plunged Capitol Hill into a furor of controversy, which split party ranks."

It's also clear Utah, a state Roosevelt won with 69% of the vote in 1936, had reservations about the idea at the time, as well.

Sen. William King, D-Utah, "flatly" opposed it, the Salt Lake Telegram article continued. The same day the bill was proposed, the Davis County Clipper also published a brief recap of court-packing up through 1937. It came to a conclusion as to why the number of justices hadn't been touched since the time Grant held office.

"The people obviously realize that time after time it has not only saved the nation from disintegration but preserved through thick and thin man's greatest heritage — liberty," the paper wrote.

The debate remained polarizing for the few months that it was on the table. On July 22, the Senate voted 70-20 to send the bill back to the Senate Judiciary Committee and the language that could have added a total of 15 justices in the court was removed.

The front page of a July 22, 1937, edition of the Deseret News read: "Senate kills President's judiciary change proposal." There were 75 Democrats at the time; an AP report in the paper stated 53 voted to send the bill back to a committee for the change.

The front page of a July 22, 1937, edition of the Deseret News following a Senate vote to send a bill about the Supreme Court back to a committee.
The front page of a July 22, 1937, edition of the Deseret News following a Senate vote to send a bill about the Supreme Court back to a committee. (Photo: Deseret News Archives)

One senator asked if it meant there would be "no consideration" to adding justices to the Supreme Court, which a colleague said was their interpretation. King and Sen. Elbert Thomas, D-Utah, were among the senators that agreed to remove that consideration.

It appears the decision was viewed favorably by some in Utah and at least respected by others. Burton Musser, a Salt Lake City attorney at the time and the chair of a group Utah Council for the Preservation of the Constitution, was quoted in the paper as saying he was "delighted" by the decision.

"This should end an episode that has threatened not only to destroy the court but the Democratic Party," he added. "To me, the proposal seemed wholly wrong. … I truly hope that the proposal to pack the court is now definitely defeated."

Sam Thurman, another attorney and a strong supporter of Roosevelt, also told the newspaper that while he backed the bill, the smartest move was to "bow to the inevitable" and move on to other issues.

A vastly altered version of the bill did go into law in August 1937 without any changes to the number of Supreme Court justices.

A renewed discussion

As evidenced by a 2019 bill already discussed in Congress, there were rumblings that a Democratic president would come in and challenge the number as a result of what happened a few years ago.

In 2016, the Republican-led Senate blocked a vote on a Democratic president's Supreme Court nomination. President Barack Obama picked Merrick Garland to replace the late Justice Antonin Scalia, but Senate leaders insisted the presidential election would be a referendum on the open position.

It led to a de facto eight-person bench until 2017, when President Donald Trump, a Republican, selected Neil Gorsuch to replace Scalia. Trump went on to nominate two other justices during his presidency, tipping the scale of the court more conservative. The "court-packing" rumblings grew louder after the death of Justice Ruth Bader Ginsberg last year.

Then, on April 9, Biden ordered a bipartisan commission to look into the issue further. That decision led to outrage from Republican members of Congress like Lee, who also tweeted he believed it was a "boneheaded idea."

Related:

When it comes to court-packing, Collins pointed out there is nothing in the U.S. Constitution that defines the number of justices in the court. All the changes made pre-1869 came from tweaks to the Judiciary Act, which means Congress could expand the court if they voted to do so.

That said, he added he still believes it's "unlikely" that the number of Supreme Court justices will change for a few reasons.

First, it would essentially signal that the court is a partisan institution, which it wasn't designed to be and what lawmakers appeared to try to move away from in 1869. Secondly, power in Washington constantly switches between parties, so what would stop Republican leaders from tacking on two more justices the moment it regained control? From there, the number could eventually spiral out of control every time the parties overturned power.

Then, there's the history of what happened the last time the discussion reached the point of possibility.

It was a debate somewhat similar to the debate now: a president facing a possibility of a bench that will strike down many policy points; however, Collings said the situations aren't totally the same. For example, the mid-1930s weren't exactly as politically polarizing as now. Roosevelt was all but universally liked by voters of both parties — as evidenced by his massive election landslide results – and his party had overwhelming control of Congress in the mid-1930s at the time he attempted to pack the court.

Biden did win by a large margin last fall but his party's majority in Congress is significantly slimmer than Roosevelt's was in 1937.

"If Franklin Roosevelt couldn't do it in the 1930s," Collings said, "I don't know how Joe Biden will in 2021."

Only time will tell if the day the number of Supreme Court seats changes — and what would happen once that day arrives.

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