With the nomination of a new Supreme Court Justice under the elect Trump administration, the mainstream media has been focusing largely on who the replacement for the late Antonin Scalia has been a large focus, but we must take a step back and look into the history of the membership of the Supreme Court in its context as it relates to the control of partisan political power.
The Supreme Court was established in the Constitution in Article III of the Constitution upon its publishing in 1797. There have been several changes since in the way in how many justices are selected for the service of the court.
The Constitution places the power to determine the number of Justices in the hands of Congress. The first Judiciary Act, passed in 1789, set the number of Justices at six, one Chief Justice and five Associates. Over the years Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices has occurred (1).
What is not mentioned is the reform of 1807, in which there is the placement of a seventh Supreme Court justice to manage the newly created Seventh Circuit court, for the purpose of dealing in a “response to the geographic expansion of the nation and the increased caseload of the district courts in the west” (2).
During 1807, there was something unique in Congress which has occured only occasionally through American history, but even less often to the same extent; congress had 18.3 percent control from the Federalist Party (26 members elected) and 81.7 percent control from the Jeffersonian Republicans, of which there were 116 members elected (3). During this period, rapid decisions related to international trade occured, but more importantly the changes in the fabric of the court system.
Thomas Todd was official voted as the first justice of the Seventh circuit on 3 of March 1807 (4), coinciding perfectly, though possibly coincidentally, with both the expiration of Article 1 Section 9 Clause 1 of the Constitution and the official abolition of the Atlantic slave trade on the 2 March 1807. There was, despite majority power of senate, large levels of dissent between the Northern and Southern states, and the imposition of a seventh seat left the Jeffersonians with a tie-breaking role in the Supreme Court system, stacking and further consolidating long term power in their own party’s best interests.
The next 2 Justices were added under the Judiciary Acts in 1837 established the 8th and 9th Circuit Courts. The Democrats then held power with a near 53 percent majority (5). Both of which, once again, coincided with the political party which held power, giving them an edge in all maters constitutional.
Under this, the most recent Judiciary Act of 1869, it was determined that there must will henceforth be 9 judges, and that the minimum number of judges that must be present to officially make a ruling must be 6 (6). This has been questioned once by president Franklin Delano Roosevelt, under whose rule there was unilateral power due to unwavering control of congress and a recent landslide reelection (98.5 percent of the electoral votes) attempted to add 6 members to the Supreme Court; he wanted to stack the court for full governmental control.
There are currently 8, as the current administration has decided to wait until the next administration takes power to begin/finalize the institution of a new justice, leaving an even number of judges. The largest issue cited today is the gridlock of the Supreme court as any tie that is made in the court currently will result in the throwing out of any related court case, deferring to the judgement of the inferior system of law, in this case the Circuit Court.
There are important decisions that will be made in the years and months to come, but one thing is certain, there is one justice that must be nominated and voted upon; congress and the executive branch are united under the control of a single party; there is no constitutional guarantee that maintains the right of the people to control the court.
Should there be a tie due to an even number of justices, is it right for a party with complete control to have the power to impose a new member upon the supreme court? Should the court remain at an even number, there would: 1) be the deference to a lower court, thus protecting from the consolidation of power under a single party, or 2) the potential to then make every contested case go to popular vote, protecting the public from the consequences of antiquated thoughts of such officials elected to a life term.
Furthermore, since the last revision of the system in 1869, the population has grown from 38,558,371 (7) to 321,418,820 people (8), a population increase of 834 percent. Is it still right to allow the same number of people to decide upon the same number of issues as 150 years ago, when the number of issues has increased exponentially? No.
The court was designed by the founders of this, the United States of America, to protect the interests of the citizens, and was as a result established with an even number of members. As such, for the sake of The Republic, we must maintain this position, keeping control from the greedy, giving the people their right to freedom. We, the people must be vigilant and prepared to take action upon the antique Supreme Court System, which unjustly looks after its own partisan political interests.