Super Sized Supreme Court
Critical Analysis
According to the data from the chart above, what was the size of the Supreme Court in 1789?
According to the data from the chart above, what is the largest number of justices to sit on the Supreme Court in American history?
The size of the Supreme Court has varied over the years. The U.S. Constitution left it to Congress to decide how many justices should make up the court. The Judiciary Act of 1789 set the number of Justices at six. In 1807, Congress increased the number of justices to seven; in 1837, the number was bumped up to nine; and in 1863, it rose to 10. In 1866, Congress shrank the number of justices back down to seven. Three years later, in 1869, Congress raised the number of justices to nine, where it has stood ever since. According to the U.S. Constitution, who has the power to determine the size of the Court?
In 1937, in an effort to create a court more friendly to his New Deal programs, President Franklin Roosevelt attempted to convince Congress to pass legislation that would allow a new justice to be added to the court—for a total of up to 15 members—for every justice over 70 who opted not to retire. Congress didn’t go for FDR’s plan. The current Supreme Court has a 6-3 Republican majority. Some Democrats have proposed adding more Supreme Court positions in order to make the Court more ideologically balanced. Explain whether you think President Biden should “pack the Court” adding more members of the current Court?
Congress has the legal power to change the size of the Supreme Court. Does Congress have the political power to change the size of the Court?
In April, 2021 President Biden signed an executive order setting up a bipartisan commission to study U.S. Supreme Court reform, and, among other things, examine the size of the court and the justices' lifetime appointments. In a final report approved Tuesday, December 7, the Presidential Commission on the Supreme Court of the United States backed continued audio livestreaming of oral arguments, an advisory code of conduct for the justices and more transparency for the "shadow docket." The group took no position on more controversial proposals to expand the size of the U.S. Supreme Court or impose term limits on the justices. Does this report make you think Biden is likely to increase the size of the Supreme Court?
In a speech at Harvard Law School, liberal Supreme Court Justice Breyer said the court's authority depends on "a trust that the court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust," Based on this statement, would Justice Breyer support increasing the size of the Supreme Court?
If you were the current Democratic chair (Dick Durbin) of the Senate Judiciary Committee (you aren’t) describe one pro and one con of increasing the size of the Court.
Do you think that the American people would support changing the size of the Court which has stayed constant for the past 151 years?
What impact would a larger Supreme Court have on American politics?
Learning Extension
Read the final final report of Biden’s Presidential Commission on the Supreme Court of the United States.
Action Extension
Contact your U.S. Representative or Senator and let them know what you think about the size of the Supreme Court.