A recent article in the Washington Post noted that “President Biden is facing renewed pressure from a range of elements in his party, from liberal lawmakers to abortion rights activists, to more forcefully embrace far-reaching changes to the high court.”
But Biden, who has been openly critical of a Court that he claimed, “doesn’t match Americans’ value systems,” has also long been on record opposing any drastic changes, such as expansion, term limits, or mandatory retirements. On expansion, for example, he contended, “If we start the process of trying to expand the court, we’re going to politicize it, maybe forever, in a way that is not healthy.”
In an earlier editorial, the Post agreed. “Court packing,” they alleged, using the pejorative term, would “initiate a cycle of partisan retribution that would see the court repeatedly packed. Doing so would represent more of the same partisan hardball that brought the court to its current state of politicization.”
No, it would not. Both the president and the Post editors are wrong.
Expanding the Court as part of a reform of Article III, if properly handled, would prevent partisan retribution and provide a more solid grounding for the judiciary than the current political madness that has rendered the one branch of government designed to be above politics a hotbed of partisanship, dysfunction, and deceit.
What is more, such a reform would not only avoid chaos but also conform to the results the delegates to the Constitutional Convention desired. In fact, the men who drafted the document during the summer of 1787 did so with the expectation that Congress and the president would set most of the rules for the courts and not be mere bystanders as the judiciary grasped for power.
The delegates knew they could not write those rules into the Constitution themselves—a national court system was widely unpopular and its very existence posed a profound threat to ratification. Many if not most Americans feared a centralized judiciary and were against creating one, except perhaps to rule on maritime law and in other limited areas in which state courts would not do.
There were a number of reasons for the antipathy. In 1787, Americans’ loyalty was primarily to the state in which they lived and each state already had a functioning legal apparatus whose independence would be diminished as the authority of a federal judiciary increased. (That was true of state power in general as the national government was strengthened.) Most were loath to cede control of the courts to citizens of other states, whom they often viewed as foreigners. National courts were also seen as a tool of the rich and threatened ordinary Americans with a descent into despotism.
With the subject so incendiary, in the debates on what would become Article III, the delegates could agree on almost nothing. As to the manner of appointing judges, for example, some favored assigning the task to Congress, others to the executive, and some even wanted to involve state legislatures. Then there was the question of whether one branch would need to ratify appointments made by the other.
Eventually, Benjamin Franklin, eighty-one years old and gout-ridden, fatigued from watching the delegates go round and round, demonstrated he had lost none of his wit. According to James Madison, Franklin, “in a brief and entertaining manner, related a Scotch mode, in which the nomination proceeded from the Lawyers, who always selected the ablest of the profession in order to get rid of him and share his practice among themselves.”
In the end, with no firm resolution possible, the delegates chose to defer. Article III, only six paragraphs long, is more notable for what was left out than for what was included. A Supreme Court was specified, but not the number of justices who would comprise it. There were no qualifications listed, nor were there standards, including whether a Supreme Court justice could rule on a case in which he or she had a financial interest, or even whether a justice needed to be a United States citizen.
Technically speaking, then, if Vladimir Putin were nominated to be chief justice, and was then confirmed by the Senate, there is no constitutional provision that would prevent him from taking the seat. (With the way things are going in Russia, he might welcome the change.)
All these, as well as the makeup of the remainder of the federal judiciary, or even if there was to be one, were left to Congress.
In Article III, Section 2, the delegates literally asked Congress to take responsibility for defining the judicial branch. “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
Congress complied. One of the first two pieces of legislation it produced—the other being the Bill of Rights—was the Judiciary Act of 1789, which mandated that the Supreme Court would have six justices, all of whom would also preside over circuit courts in six specific geographic areas, delineated by population and perceived importance to the new government.
The job was not necessarily a plum. Justices would be required to “ride circuit” twice a year, which for some meant long journeys through the wilderness to Georgia or New Hampshire, traveling over bad roads, and eating indigestible food at backwater country inns. It was a task most despised.
The law also provided details of both a nationwide district court system and defined jurisdictions that had been omitted in Article III.
For almost a century, with rare exceptions, the number of justices was pegged to the number of circuits, which increased as the nation grew. The Court was thus increased to seven justices in 1807, and in 1837 to nine. For a brief period beginning in 1863, there were ten circuits and ten justices. To throttle President Andrew Johnson, Congress reduced the number of justices to seven in 1866, but then, in 1869, with Johnson gone, set the number at nine, where it has remained ever since.
The nation has grown a great deal since 1869, and with it the number of circuits. Currently, there are twelve geographic circuits and one “federal circuit,” for a total of thirteen. And although Supreme Court justices no longer ride circuit, each of them continues to be assigned a circuit or circuits to oversee. Thus, the principle that the Supreme Court should expand as the country does has been abandoned.
That was a mistake.
The Court should be expanded to thirteen justices, to match the number of circuits. The key to avoiding partisan chaos and preventing every new party in power from popping more justices on the bench, is to add circuits only when population growth makes it appropriate, two at a time. In this way, the Court would be fixed at thirteen justices, only increasing by two if circuits increased by two, with a strict formula pegged to the census to prevent arbitrary additions.
To further deter partisan bickering, the four new justices should be selected by a bipartisan committee, composed of lawyers, judges, law professors, and public advocates. Their choices would then be nominated by the president. If the committee does its job properly, the four nominees would not be from the extreme wing of either party and thus be able to restore some balance to a Court now run amok.
Term limits could and should be imposed, which again would conform to the expectations of the delegates. Although “shall hold their Offices during good Behaviour,” has heretofore been interpreted as “for life” by most scholars and just about every judge, there is a persuasive body of evidence that the delegates saw a distinct difference in the two phrases.
During a debate on the term of the executive, for example, George Mason, one of the most influential delegates, warned that he “considered an Executive during good behavior as a softer name only for an Executive for life. And that the next would be an easy step to hereditary Monarchy.”
In another debate about the term of the executive, James Madison proposed “good behaviour, or Seven years with exclusion forever afterward.” Madison could hardly have meant “life” as the alternative to a hard limit of seven years.
Alexander Hamilton at one point told the delegates, “Let one branch of the Legislature hold their places for life or at least during good-behaviour. Let the Executive also be for life.” If one was an alternative to the other, they could not be the same.
In addition, for four long, hot months in Philadelphia in 1787, delegates who did not know and often did not like one another wrangled to try to find a means of government that would provide some centralized authority without granting any branch sufficient power to wield despotic power over either the other branches or the states. It stretches credibility to believe that in the midst of these often acrimonious negotiations, the delegates would be willing to create one branch—the one they trusted the least—that consisted of unelected lifetime members with no checks on their authority or power, short of impeachment, which was made intentionally impracticable.
No one is claiming these reforms would be easy to implement. In the current trench-warfare Congress, nothing is. But creating a framework for change is the only way to create hope of it actually happening. A new judiciary act would not only help restore desperately needed faith in the court system, but would also conform to the desire of the Framers, for whom the current dictatorial Supreme Court would have been an abomination.