Benjamin Franklin (1706-1790) usually argued for lengths of elected service determined by the people. If constituents wanted to re-elect the same “public servant” time and time again, and he (or she) received enough ballots, Franklin didn’t object, even if tenures of presidents were long. When it came to appointing judges, however, Franklin adamantly argued for a Scottish-style legal system where lawyers, not holders of high office, designated judges. James Wilson (1742-1798), who signed both the Declaration of Independence and Constitution before becoming a Supreme Court Justice himself, strongly disagreed. Wilson favored court appointments by authorized individuals, feeling collectives of peers weren’t likely to decide such matters fairly. John Rutledge (1739-1800), South Carolina delegate to the Constitutional Convention, who also served in the Supreme Court, thought otherwise. (His older brother Edward, you may recall, was rivetingly portrayed singing “Molasses to Rum” in the Broadway musical and movie hit 1776.) Both Rutledges thought presidents appointing judges was monarchical. Ultimately, in compromise, the founding fathers agreed the legislature would decide the number of judges that sat on the Supreme Court, permitting presidents to nominate them for congressional approval. Likewise for lower courts, presidents could submit nominations to the Senate for advice and consent. Since SCOTUS was established in 1789, presidents have submitted 168 nominations to the Supreme Court, including chief justices, with 127 confirmed and 7 declining to serve.
You’d think the Constitution would specify how many justices can sit on the Supreme Court at a given time. It doesn’t. Article III establishes powers of the court without stipulating membership. Organizational decisions, such as court capacity, rest with Congress. Originally, there were six Supreme Court justices pursuant to the First Judiciary Act of 1789, dropping to five in 1801. Ten served during the Civil War, and nine, an upgrade from seven, have rendered decisions since 1869. Recent Biden scuttlebutt aside, the last concerted effort to change SCOTUS’ size was in 1937. FDR’s Judicial Procedures Reform Bill pushed to expand the court to as many as fifteen seats. Ostensibly, the move was supposed to ease workloads for senior judges, limiting additions to full-voting stand-ins for justices, who, reaching 70 years of age chose not to retire. Chief Justice Charles Evans Hughes, 75 at the time, and Louis Brandeis (then 81) debunked FDR’s claims that cases were getting backlogged, and the bill never passed. It was widely assumed Roosevelt used “congestion” to stack the court with judicial supporters for New Deal imperatives. Nonetheless, despite GOP legal impediments, narrow majorities passed landmark initiatives like the National Labor Relations and Social Security Acts.
SCOTUS has ultimate, but largely discretionary, appellate jurisdiction over all federal and state cases involving federal law. It can invalidate statutes, conduct judicial reviews and strike down presidential directives violating the Constitution. Its number of seats shouldn’t matter unless we accept the premise, hopefully flawed, that esteemed judges ignore jurisprudence to become lockstep puppets of politicos appointing them. Human laws, unlike laws of physics, chemistry and biology, are neither immutable nor absolute, just artificial, albeit necessary contrivances. While not on par with scientific bodies for reliable consensus and analytic rigor, a trained and experienced judiciary, numbering 5, 9, or even 15, should, at least, impartially interpret that law. I say, expand SCOTUS only to add diversity ─ maybe an agnostic or atheist, Asian- and Native American, Hindu, Moslem, Buddhist or Jain.
Scott Deshefy is a biologist, ecologist and two-time Green Party congressional candidate.