“The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”
– Chief Justice nominee John Roberts (2005)
The members of the US Supreme Court serve life terms for a reason. Once on the court, they no longer have to give a hoot what the people think.
Freed from all those seedy influences that seem to dominate the lives of our representatives in Washington, the Supreme Court is meant to serve as the stabilizing force of our entire Constitutional system. Justices need not pretend to be anything more than the final arbiters of our law and its foundation, a tempering body that looks beyond the zeal of the political moment, no longer even inclined to comb their hair in order to secure a single vote; a small group so sheltered from the fleeting passions of the day that they are able to see unclouded the long consequences of their judgments.
If only this were so. The controversial Gorsuch and Kavanaugh confirmations are part of a recent trend that threatens the objectivity and hence the credibility of the court itself; of 28 justices confirmed by the Senate since the 1950s, only four have ascended with fewer than sixty-three votes. All four are serving today.
Age Senate Confirmation Vote
Clarence Thomas 69 52 to 48
Samuel Alito 68 58 to 42
Neil Gorsuch 51 54 to 45
Brett Kavanaugh 53 50 to 48
Along with Chief Justice John Roberts (age 63), this politically charged conservative majority is poised to rule for a long time to come.
Despite the legitimate cries of foul from liberals, the current court has been constituted according to the rules. Yet, the rules begin with the Constitution. According to Article III, “The judicial Power of the United States shall be vested in one Supreme Court… as the Congress may from time to time ordain and establish.” [italics added]
When the court ceases being what the court was intended to be, it is the Congress which has the power, “from time to time,” to intervene. To wit, there is no mention in the Constitution of the number of justices who shall sit upon the Supreme Court.
Let history be our guide. In 1789, Congress originally set the number of justices at six, changed it to seven in 1807 and then nine in 1837. During the Civil War, the number was set at ten by a Congress that did not include representatives from the eleven states of the Confederacy; understandable, considering these states were in active political and military rebellion against the United States.
After President Lincoln’s assassination in 1865, the Congress reduced the number of justices to seven in order to limit President Andrew Johnson’s influence over the court.
It wasn’t until the Judiciary Act of 1869 that the number of justices was set at nine, where it has remained ever since.
While nine has become fashionable, the fact remains: the number of justices is a matter for the law-making process. Under the right circumstances, the politically manifested court we have today could be returned to something the framers of the Constitution envisioned.
Attempting to alter the court is not to be taken lightly. The most daring example arose in the 1930s while the country was in the thralls of the Great Depression. After the court struck down many of President Roosevelt’s most sweeping New Deal programs, FDR attempted to increase the number to 15.
His argument was that aging members of the court were too feeble. He suggested that, for each justice over the age of seventy, another justice would be appointed with the goal of helping the old guys shuffle all those papers. FDR had just been re-elected in a landslide and his Democrats controlled the Senate with a 74 to 18 majority. With two of three branches firmly in his power, Roosevelt’s court-packing plan was an effort to bring the judiciary under his control, as well.
The question was not so much whether a 15-justice court is Constitutional, for if the Judicial Procedures Reform Bill of 1937 had passed, it certainly was. The question before the entire country was whether President Roosevelt was becoming King Franklin I.
Members of FDR’s own party recognized the threat posed by Roosevelt’s court-packing plan and refused to go along. Loading the court with FDR liberals was clearly a political act meant to achieve political goals and, in the end, wiser heads prevailed.
If wiser heads are to prevail today, it must be seen that the Supreme Court’s conservative turn has been achieved through political machinations that defy the purpose of the court as imagined by the framers. As it turns out, the one who seems to understand this as much as anyone is Chief Justice John Roberts. He has demonstrated in the past his desire to maintain the court’s independence and its commitment to stare decisis, a respect for precedent. If he fails, the Congress has the power to alter the long-standing precedent of a nine-member court.
Since an unsuccessful attempt has been made before, it is important to remember that FDR was clearly attempting to politicize the court in 1937. Today, any court-packing would be carried out with the goal of de-politicizing the court. Adding four justices with, say, a requirement of 75 Senators needed for confirmation, would give the current divided court the centrist foundation it was always intended to have.
Recent events illustrate both the worst and the best of our Constitution. The bad news is that the system of checks and balances that strives to maintain a separation of powers can be undone. The good news is that, if the people choose wisely—and the moment for the choosing is now upon us once again—those in power will have the wisdom and the courage to stand down the threat.