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The Wisdom of Thirteen

When hearing of our plan to expand the Supreme Court for the first time, some people are surprised, or even confused. After all: a nine-member court is all that anyone can remember. Having learned about the Supreme Court in school and heard about its decisions in the context of nine members, it’s easy to imagine that nine is some sort of magical number, divined by our country’s founders.

The reality is, the Constitution does not set the number of Supreme Court justices. That job is given to Congress, which is also tasked with setting the structure and rules, not just for the Supreme Court, but for the judiciary as a whole.

Originally, Supreme Court justices “rode the circuit”, traveling to various district courts to hear appeals.  The first Judiciary Act (1789) created three circuits, with two Supreme Court justices assigned to each – six members on the Supreme Court. The court’s size was tied to the number of federal circuits. In 1802, Congress affirmed a change in the number of circuits to six, with one Supreme Court justice assigned to each.

For some time afterward, this practice held. In 1807, a Seventh Circuit was added, and the Supreme Court expanded to seven justices. Two additional circuits were created in 1839, and the court expanded again accordingly, to nine members. And, in 1863, a tenth Supreme Court justice was added to accompany the new Tenth Circuit in Oregon and California.

As Alexander Hamilton explained in the Federalist Papers, the purpose for these regional courts was not merely to save people from having to travel to have cases heard. The courts had to be “competent to deal with the “matters of national jurisdiction within [their] limits”. The cases that arose in a financial center like New York, for example, would be different from the types of cases that would eventually arise in the West, where issues of land use, water rights, and Native American law are now prevalent.

This tradition was broken with the crisis of Andrew Johnson’s presidency. A Southern Democrat, Johnson had been nominated Vice President to “balance” Abraham Lincoln’s ticket, and, after ascending to the presidency following Lincoln’s assassination, was hostile to Reconstruction and the Republican Congress. In order to prevent Johnson from placing any justices on the Supreme Court, Congress passed the Judicial Circuits Act of 1866, stating that “no vacancy in the office of associate justice of the supreme court shall be filled by appointment until the number of associate justices shall be reduced to six”.

courtcartoon.pngAfter Johnson left office, new legislation set number of justices to nine, where it has remained ever since. Today, there are thirteen circuit courts of appeals: eleven regional circuits; a D.C. Circuit, which often reviews the decisions and rulemaking of many federal agencies based in the national capital; and the Federal Circuit, which has jurisdiction over patent and trade cases, as well as appeals from district courts in various U.S. territories.

This deviation from precedent has had a number of impacts on the nation. The Supreme Court does not have the diversity of knowledge of local issues fields it once had. Not a single member, for example, has served on a court specializing in intellectual property – a vital and contentious part of our modern economy. It also does not have the advantages that come with a larger size.

With just one exception, every other Circuit Court of Appeals has eleven members or more by law. This larger size allows what are known as panel decisions, where a panel of 3 or more judges hear and decide a case (keeping open the possibility of the full court hearing a case en banc, should it decide to). These panel rulings allow appeals courts to answer many more of the questions put before them. The Supreme Court, on the other hand, has no panel rulings, and although they receive thousands of petitions a year, typically they issue between just 70 and 90 decisions.

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The number of Supreme Court decisions over time. Credit: empiricalscotus.com

In addition to these issues of experience and workload, the smaller nine-member court is more vulnerable to concerted efforts to capture the institution by partisans and ideologues. As we have discussed, the current five member conservative majority is the result of an extremely partisanized approach to Court nominations. The smaller court lowers the bar needed to dominate rulings and compromises its integrity. In the present day, this vulnerability to corruption has resulted in a long list of rulings favorable to Republican power, and threatening the integrity of our democratic system.

That why we at SCOTUS Majority PAC advocate to a return to this historical tradition by expanding the Supreme Court so that it has one seat for every one of the 13 U.S. Circuit Courts of Appeals. This expansion will restore balance to the court, restore its power, and ultimately, restore its wisdom.

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“To Make American Democracy Succeed”

Our Supreme Court cannot be allowed to be transformed into an institution in which the nation’s political minority dictates the direction of policy from the bench. When the public demands change – when its leaders demand change – and reactionary voices from long ago are able to prevent that change due to lifetime appointments and their willingness to distort our Constitution’s meaning, democracy is undermined.

The last time a Democratic president sought to reshape American society, the Supreme Court proved to be the final bastion of support for the old order. It is our government’s most change-resistant institution. In a fireside chat to the nation, Franklin Delano Roosevelt explained the need for a new generation to be allowed the chance to choose their government’s policies, and asked the public to help protect democracy:

During the past half century the balance of power between the three great branches of the Federal Government, has been tipped out of balance by the Courts in direct contradiction of the high purposes of the framers of the Constitution. It is my purpose to restore that balance. You who know me will accept my solemn assurance that in a world in which democracy is under attack, I seek to make American democracy succeed. You and I will do our part.

President Roosevelt sought to enlarge the court as a solution to its justices having made themselves a “third branch of Congress”. His proposal – the threat of a truly progressive Supreme Court – led Southern Democrats to defect from the president and join forces with conservative Republicans. This political alliance eventually led to the “southern strategy” and a national politics dominated by racial fears and resentment.

When the next Democratic president seeks to reform our laws and institutions, they will inevitably face the same obstacles as Roosevelt. The challenge must be met head on. We believe that during the next period of unified Democratic government lawmakers must be prepared to use their Constitutional powers to expand the court from nine to twelve members. Doing so will not only strengthen the court and allow it to function more effectively, but would put an end to a conservative majority that views the court as an instrument of partisan warfare.

Do you support the mission of securing a truly progressive Supreme Court majority? Click the button below to donate now and help us in our fight to advocate for lawmakers willing to stand up for a democracy able to represent the people’s will!

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