Interest is the mother of learning. Page 82 of my sixth-grade health text was the first page in the chapter on reproduction. Stained pages, notes, and drawings in the margins suggest there was great reader interest. Handing out the book, the teacher said, “before all of you go to page 82…” you couldn’t help it. The book spread open to this page like a pelican opening its wings to dry.
The more we learn, the less likely we are to get puffed up with opinions, the lowest form of human knowledge. When we learn for ourselves instead of listening to others filling us with fear, we have an opportunity to remove the “sky is falling” feeling. We often find that what’s happening today, as in the Supreme Court case, is nothing new, but history repeating itself. Some argue that books, no matter who writes them, don’t tell the truth. I’d counter: If you read enough, the brighter your light of comprehension. Deciding not to self-educate is a choice to remain in darkness and denies you a seat at the table.
After the death of Ruth Ginsberg and the subsequent nomination of Amy Coney Barrett, my interest in the judicial branch of government was red hot. My social media feeds and newspaper opinion columns engaged in speculations. The Constitution spells out the number of Justice we can have, some claimed. The opposing party will undo any law to increase the Supreme Court’s number of Justices, another insisted.
Justices take two oaths before taking their place on the Court. Typically, the first oath is with the Chief Justice followed by a ceremonial service at the White House.
In July of 1783, America broke away from Great Britain’s rule and had to decide how to govern the new nation. Federalists (eventually changed to Republicans) supported a strong central government that would make the entire country’s rules and regulations. The thought of giving the states the right to make their laws, they believed, would create chaos. The anti-federalist (eventually changed to Democrats) wanted a bill of rights that would protect the citizens’ individual rights.
The Judiciary Act of 1789 created the Supreme Court, passed by Congress and signed by President Washington. The newly established tribunal was made up of six justices who would serve until retirement or death.
For the next eight years, Congress routinely changed the number of justices to achieve their political goals. In other words, our recent experiences with Democrats entertaining the idea of expanding the Supreme Court are no different than those of citizens in the first century of the new country. The Constitution, Article III, Section 1, starts with: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” and so.
In 1801, President John Adams and a lame-duck Federalists Congress reduced the Court to five to limit President Thomas Jefferson’s appointments. That didn’t work. Jefferson, an Anti-Federalist, repealed the act, putting the number back at six and then added a seventh Justice.
President Andrew Jackson (1837) added two more justices, putting the Court at nine.
After Lincoln’s assassination (1865), Congress clashed with his successor, Andrew Johnson, and passed legislation to cut the SC justices back to seven.
The last time Congress changed the number of seats on the High Court (from seven to nine) was in 1869 when Ulysses S. Grant was elected President. President Grant used his two picks to reverse a ruling, a hot button issue that paper money was unconstitutional. This suggests that generations before us understood that the seats on the Court varied. A bit like the number of kids in a classroom. One year, 2 is considered a full load, the next it’s 20, and a decade later, the Superintendant and the teacher union may agree that 28 kids in a classroom means full capacity.
During the Depression of the 1930s, the Supreme Court undercut some of Franklin D. Roosevelt’s (D) New Deal legislation. FDR proposed a bill allowing him to name six new justices. “Under the proposed legislation, all sitting justices older than 70 would be asked to resign. If any of them refused, FDR would be allowed to nominate additional justices to the bench. Since six of the nine justices at the time were older than 70, that created the possibility of six new seats on the Supreme Court.” The Senate voted 70-20 against it.
Under Article II of the Constitution, the power to appoint belongs to the President of the United States, who can select any person, regardless of education or experience. He can appoint his barber if he so chooses. Or his favorite mistress. His selection goes to the Senate Judiciary Committee, which forwards a questionnaire to the nominee, including employment information, opinions issues, etc. The Judiciary Committee holds hearings that can take several days. The process typically takes about 2.5 months for a nominee to reach a vote in the Senate. Finally, the Senate confirms with a simple majority, now 51 votes.
Unlike earlier history, the confirmation process attracts a lot of attention from influential special-interest groups who lobby senators to confirm or reject the nominee.
Before Ronald Reagan’s administration, the process took about a month. But since the 1980s, the process has grown longer and more contentious. Speculations about the nominees’ political leanings have politicized the process.
What about the opinions that conservative judges may end up voting for more liberal positions? And the idea that “I follow the Constitution” in interpreting the law? The newest justice on the current Court said she interprets the Constitution as text. Is there another way to interpret it? Ron Charles writes, “Barrett’s description, popular among wistful conservatives, assumes that the meaning of the Constitution was once self-evident, stable and universally agreed upon. None of those conditions is or was ever true. When we read, we can’t exclude the subjective act of interpretation because that’s what reading is.”
If language was interpreted by all in the same way, why have book clubs to discuss our take on the text? Is it possible to interpret anything except through a filter of our experiences? If the nine justices read the constitution the same way, why would we need them?
The Founding Fathers believed that changing the Constitution should not be easy, but not impossible. They realized that the constitution contained flaws that would take time to work out and that society changes. Interpretation of what they meant and ignoring what the people need today is a collision of wills and impedes progress. Claiming “originalism” is a privilege maneuver to claim the views you hold supersede those of the rest. Politicians understand this and is why they push hard to pack the Court with like-thinking people. Trump was correct when he said that there are Democratic justices and Republican justices. Justices don’t shed their skin, experiences, and values when they slip on a black robe.
Conservative justice sometimes voting with liberals, an argument people make are outlier moments. Sonia Sotomayor and Elena Kagan vote in lockstep in matters like pro-civil rights, unions, first amendments, and criminal proceedings. Whereas John Roberts, Samuel Alito, and Clarence Thomas mostly concur on decisions of criminal procedure, union cases, and first amendment questions.
The Supreme Court, now 230 years old, has gone from five to ten seats and now stands at nine. It takes on less than 100 cases per year. The decisions these nine people make are of great consequence.
- FJC.gov Federal Judicial Center