Debate Nirvana

There have been 9 justices of our Supreme Court since 1869, and 6 before that.  Has our country not been successful enough since then? 

Since 2007, the government has conducted polls on the public’s knowledge of the Constitution.  Guess what? In general, people know a lot about our founding document, particularly our Bill of Rights – the first 10 amendments to the Constitution. 70% of respondents scored at least a very impressive 80% of questions about the Bill of Rights. According to a poll conducted by the National Constitution Center in Philadelphia, individuals all along the ideological spectrum believe our nation's founding principles are still those upon which we should rely. 75% of Americans agree that the Constitution is an enduring, relevant document; and 60% believe the rule of law should be followed and the rights of everyone protected, even in the face of vocal majorities and short-term public safety considerations. Yale Law School Professor Richard Albert believes there is a cultural acceptance of 9 justices by the American public.  “Time and tradition have conspired to make nine (justices) an integral part of American political culture, and the strength of this perception has hardened.”

The smaller the court the harder it is to put together a majority.

Minneapolis law professor Michael Stokes Paulsen argues that the smaller the Supreme Court is, the less likely it is to have the capacity to do damage to the Constitution. How would that work? Simple: A smaller court means diminished judicial activism. As the Court’s size shrinks, activist majorities become mathematically harder to put together. Four votes out of seven is harder to achieve than five of nine. Four out of six becomes harder yet. With a Court of six, major changes in interpretation of the Constitution and federal laws would require a two-thirds majority rather than a 5-to-4 squeaker — the margins by which the Court upheld Obamacare, created a right to same-sex marriage, and reaffirmed Roe v. Wade. As at present, ties would yield no precedent but merely affirm lower courts’ rulings, with more limited effect. Fewer justices thus means less judicial activism, at least at the Supreme Court level.

Any change in the number of justices causes an immediate imbalance in liberal versus conservative leanings of the court, which is very upsetting for the whole country.In the Judiciary Act of 1869 Congress had established that the United States Supreme Court would consist of the Chief Justice and eight associate justices. Then along came President Franklin D. Roosevelt in 1937 with his proposed "court-packing" plan that would have added six new seats, all of which he would have been able to fill with nominees who would vote to uphold his policies. During Roosevelt's first term the Supreme Court struck down several New Deal measures as being unconstitutional. Roosevelt sought to reverse this by changing the makeup of the court through the appointment of new additional justices who he hoped would rule his legislative initiatives did not exceed the constitutional authority of the government. Since the U.S. Constitution does not define the size of the Supreme Court, Roosevelt pointed out that it was within the power of the Congress to change it. The legislation was viewed by members of both parties as an attempt to stack the court, and was opposed by many Democrats, including Roosevelt’s own Vice President. According to William Leutenberg, a history professor at University of North Carolina, the bill came to be known as Roosevelt's "court-packing plan,” and is viewed by historians as a power grab that negatively affected his legacy. It was defeated in the Senate. In addition, another FDR author and scholar, Michael Parrish, wrote that “the protracted legislative battle over the Court-packing bill blunted the momentum for additional reforms, divided the New Deal coalition, squandered the political advantage Roosevelt had gained in the 1936 elections, and gave fresh ammunition to those who accused him of dictatorship, tyranny, and fascism. When the dust settled, FDR had suffered a humiliating political defeat at the hands of Chief Justice Hughes and the administration's Congressional opponents.”