Presidential Commission on the Supreme Court of the United States
Americans were not “citizens,” and that Congress could not prohibit slavery in the territories.[16] Accordingly, there was a strong sense that the Court was in need of reform. During the Civil War, the Republican Congress in 1863 created a new tenth circuit and added a tenth seat to the Supreme Court for its new circuit Justice, enabling President Lincoln to appoint a pro-Union, anti-slavery Justice.[17] Soon thereafter, Congress again modified the Supreme Court’s size. In 1866, after the assassination of Lincoln led to the presidency of Democrat Andrew Johnson, Congress reduced the Court’s future membership to seven.[18] The conventional view is that the Republicans who controlled Congress in the post-Civil War era—and whose primary goal was to reconstruct the South—did not trust Johnson to nominate Justices sympathetic to those reconstruction efforts.[19] By contrast, in 1869, the Republican Congress was willing to return the Supreme Court to nine members, once fellow Republican (and former Union army general) President Grant was in charge.[20] But other historical experts conclude that these changes “were motivated by practical and mundane performance goals,” including returning the Court to a workable (and odd) number of Justices.[21]
B. The Court-Packing Plan of 1937
The size of the Supreme Court has remained at nine members since 1869. But there was a prominent attempt to remake the Court in 1937: President Franklin Roosevelt’s so-called “Court-packing plan.”[22] As we explain in some detail in Chapter 1, the proposal was a response to a series of decisions by the Supreme Court in 1935 and 1936 invalidating major New Deal legislation enacted by Congress and championed by Roosevelt, as well as myriad state labor and social welfare laws, all directed at bringing the nation out of the economic and social calamity of the Great Depression.[23] With still more constitutional challenges to major New Deal enactments on the horizon, and after his commanding victory in the election of 1936, Roosevelt and his administration turned to protect the progressive New Deal from the courts.[24]
Under Roosevelt’s plan, the President would be authorized to appoint one additional Justice to the Supreme Court for each Justice over seventy years of age (who did not retire within six months)—for a possible total of fifteen members.[25] The legislative proposal grew out of a nearly two-year study in the Department of Justice as to the proper means of reforming the Supreme Court. Justice Department officials considered a variety of proposals, including constitutional amendments, measures to restrict federal jurisdiction, and proposals to expand the Supreme Court.[26] Ultimately, officials advised that “the proposal to enlarge the Supreme Court, while not without flaw, was ‘the only one which is certainly constitutional and … may be done quickly and with a fair assurance of success.’ … [I]t was the ‘only undoubtedly constitutional method by which to obtain a more sympathetic majority of the Court.’”[27]
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