How many justices should be on the Supreme Court? It's been a battle before

How many justices should be on the Supreme Court? It's been a battle before
© Greg Nash

Talk of adding justices to the Supreme Court has suddenly become a hot topic among Democrats stung by the Senate GOP’s blocking of former President Obama’s last pick — and its subsequent success in confirming two justices nominated by President TrumpDonald John TrumpGraham to introduce resolution condemning House impeachment inquiry Support for impeachment inches up in poll Fox News's Bret Baier calls Trump's attacks on media 'a problem' MORE.

Former Rep. Beto O’Rourke (D-Texas) said the idea of adding justices to the Supreme Court was worth “exploring,” a position other Democratic candidates have also embraced.

This would be a radical change for a court that has had nine justices since 1869.

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But before the Civil War, the number of justices on the court actually flipped around a number of times — often due to political differences between the parties of the time.

The Judiciary Act of 1789 placed six justices on the Supreme Court.

Over the next 80 years, that number changed several times, however, with the court sometimes having fewer than 9 justices and also having as many as 10 justices.

At the time of the Judiciary Act's passage, there were 11 states. 

The court was expanded in the 19th century largely in response to the country's geographic growth, which resulted in an increased number of court cases and subsequent changes to the circuit court system. 

A 2007 New York Times opinion piece by Jean Edward Smith points out that these appointments also often had political motivations. Smith noted that a Congress controlled by Federalists that had just been defeated in the 1800 election reduced the high court's size to just five justices in 1800 to try to give Thomas Jefferson one less appointment.

The next Congress, controlled by Democrats supporting Jefferson, repealed the measure and later added a seventh justice. 

In 1863, Congress increased the size of the court from nine justices to 10, which was supported by President Lincoln's administration as an opportunity to add a justice who supported the Union.

Congress, which was held by Republicans, lessened the number of judges to seven after Lincoln's death to preclude Democrat Andrew Johnson from appointing justices.

After Republican Ulysses S. Grant was elected president, Congress added two more justices and it has remained a nine-member body since. 

The most aggressive effort to add to the court since Reconstruction came during the Great Depression, when President Franklin Roosevelt sought to add up to six justices to the Supreme Court. He proposed that justices should be forced to retire at age 70 or that they should each receive an associate who also got a vote. 

Roosevelt argued this was necessary because of the court’s rulings against several pieces of New Deal legislation. On the court, there were four justices who generally opposed the legislation, three who supported it and two who were seen as swing votes. 

The court unanimously struck down the National Industrial Recovery Act, which among other provisions, created the National Recovery Administration, which set fair practice codes for the industry. The court argued that it unconstitutionally allowed the administration to make laws. It also ruled that the Agricultural Adjustment Act, a farm relief bill that created an administration to regulate farm production and prices, was unconstitutional because of a tax provision. 

Roosevelt’s court-packing proposal was to allow the president to appoint an additional judge for Supreme Court justices who served for more than 10 years and refused to retire within six months of turning 70.

Democrats had a strong majority in the Senate, as 76 of 96 Senators were from Roosevelt's party. But many of them saw his plan as an overreach and voted against it. The court-packing plan failed spectacularly in a 70-22 Senate vote.

Some Democratic candidates this year have expressed different kinds of reforms to the way Supreme Court justices are selected.

Democrat Pete Buttigieg, the mayor of South Bend, Ind., has expressed interest in a policy that would raise the number of justices to 15, with five appointed by Republicans and five by Democrats. The remaining five would need to be consensus picks by the 10 justices on the court.

O’Rourke has also expressed support for that idea.

“What if there were five justices selected by Democrats, five justices selected by Republicans and those 10 then pick five more justices independent of those who picked the first 10,” O'Rourke said. “I think that’s an idea we should explore.”

A progressive group called “Pack the Courts” is pressing for Democrats to add four justices to the court to “nullify” Trump’s two appointees.

Executive Director Aaron Belkin said such steps are necessary because of a “Democracy emergency.”

“To nullify the theft of the Garland seat, two justices would have to be added to nullify Gorsuch’s votes and to the extent that President [Trump] obtained the presidency by breaking the law, then two seats would have to be added to nullify the Kavanaugh seat.”

He told The Hill in a statement that he feels two seats are needed to nullify each "stolen seat" instead of just one because one liberal judge would act to cancel out each conservative justice's vote and another would represent the Democratic judge that he believes should be on the court instead of Gorsuch and Kavanaugh.