Accusations fly back and forth between the political parties, each claiming the other is politicizing the United States Supreme Court. However, a brief look at the history of the Supreme Court establishes this is neither new nor novel.
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And Presidential Nominee Joe Biden’s plan for Supreme Court reforms demonstrates he’s pulled a page right out of history on how to do it. So, here is his playbook.
Article III of the United States Constitution established a Supreme Court without direction on the number of Justices that could be appointed. Additionally, Article III gave Congress the authority to establish the federal court system, which it did with the Judiciary Act of 1789. Congress decided that each of the 13 states would have a Federal Circuit Court presided over by two Supreme Court Justices and one Circuit Court Judge from that state, divided geographically into three regions: Eastern, Middle, and Southern. Thus, when George Washington signed the Act into law, he set the number of Supreme Court Justices at six, two for each region. There was no concern about equally split decisions because all the Justices were Federalists and not all six would preside on every Supreme Court case.
However, that lack of concern didn’t last long. In 1800, When our second President and Federalist, John Adams feared losing the election to Democratic-Republican, Thomas Jefferson, less than one month prior to the election he appointed a new Supreme Court Justice and his Federalist buddies in Congress passed the Judiciary Act of 1801 decreasing the number of justices to five and decreasing the probability of a nomination by Jefferson during his term as President. This did not prove to be the savvy political move the Federalists had hoped for, because Jefferson and his new Congress simply repealed the Act, returning the number of Justices to six.
Subsequently, American expansion Westward created additional Circuit Courts, increasing the number of Justices to nine. Then in 1857, the Supreme Court issued its Dredd Scott decision, incensing abolitionists and empowering their movement for Reconstruction. President Abraham Lincoln, desirous to solidify an anti-slavery majority on the Supreme Court, added a 10th Justice in 1863. After his assassination, his successor, a Democrat, President Andrew Johnson sought to undo Lincoln and his fellow Republicans’ plan for Reconstruction upsetting Congress. Determined to limit Johnson’s power by assuring he would not be able to nominate a Justice, Congress passed the 1866 Judiciary Act, reducing the number of Justices to seven.
The year 1869 marked the last time Congress changed the number of Supreme Court Justices. Johnson no longer a threat to Reconstruction having lost the election to Republican President Ulysses S. Grant largely due to the support of congressional Republicans who further supported Grant by increasing the Supreme Court back to nine, enabling him to nominate two Justices and further ensuring Reconstruction.
Things were sailing smoothly until the 1930s when several Supreme Court decisions undercut Democratic President Franklin D. Roosevelt’s New Deal. Displeased and having just won a second term by a landslide, FDR fought back by proposing legislation that would fill the Supreme Court with his supporters. His proposed legislation, commonly referred to as the “Court Packing Plan” not only sought to increase the number of Justices to fifteen, giving him six nominations but would also require sitting Justices over 70.5 years of age who had served for over 10 years (of which there were six) to resign, giving him another six nominations. FDR wanted twelve of the fifteen Justices to be his picks to all but assure his New Deal passing Constitutional muster. In a 70-20 vote, the Senate shot down the “Court Packing Plan”. Nevertheless, the threat FDR’s proposed legislation was enough to create fear among the Justices resulting in one changing his positions, shifting the Court to FDR’s favor.
Since then, the majority of the Court has shifted like a pendulum from left to right. However, with President Donald Trump appointing three Justices the Court is now 6 – 3 with a Republican majority that could persist for quite some time. That is, unless Presidential nominee Joe Biden is elected. Biden pledges to establish a commission to recommend reforms to the Supreme Court that would include “court-packing” that Democrats are trying to rebrand as “balancing the court”. Democrats justify the need for reforms with disinformation including, but not limited to, claims that President Donald Trump is politicizing the Supreme Court by appointing conservative Justices. The reality is that politicians have politicized the Supreme Court since our second President and in each instance, it was done not to strengthen the Supreme Court or the Constitution, but to strengthen a political play by a specific ideology. Biden and his fellow Democrats have clearly read the playbook on how to gain power utilizing the Supreme Court and plan to do so through so-called “reforms”.