Yesterday I commented that "our constitutional regime has an Achilles Heel in the vast power of the Supreme Court - i.e., if we ever get five justices (enough for a majority) who consistently vote in ways that systematically undermine the text and spirit of the Constitution, there's little We the People can do to reverse the decisions of these appointed-for-life Justices."
Jean Edward Smith, John Marshall professor of political science at Marshall University, makes an excellent point in an OpEd in yesterday's New York Times, reminding us of the several times throughout the nation's history when the Court has been "set straight" with the political solution of increasing (or decreasing) its membership.
The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress. As Smith notes, "there is nothing sacrosanct about having nine justices on the Supreme Court. Franklin D. Roosevelt's 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike." Specifically, Congress has adjusted the size of the Supreme Court on the following occasions:
-1800: "When the Federalists [and John Adams] were defeated in 1800, the lame-duck Congress reduced the size of the court to five - hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment."
-1837: Congress "increased the number to nine, affording the Democrat Andrew Jackson two additional appointments."
-~1862: "During the Civil War, to insure and anti-slavery, pro-Union majority on the bench, the court was increased to 10."
-~1866: "When a Democrat, Andrew Johnson, became president upon Lincoln's death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments."
-1868: "After Ulysses S. Grant was elected, Congress restored the court to nine. That gave Grant two new appointments.
-1937 (failed attempt): "The most recent attempt to alter the size of the court was by Franklin Roosevelt in 1937. But instead of simply requesting that Congress add an additional justice or two, Roosevelt's convoluted scheme fooled no one and ultimately sank under its own weight."
Smith's point is an important one, in that it explains another mechanism by which We the People, through our elected representatives, may temper a persistently out-of-touch Supreme Court.
Smith concludes, "If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant."
