Why Not Reduce The Court to 7 Justices?

Supreme Court Building

There’s a lot of concern that if Hillary, Bernie, or Joe Biden put in as pinch hitter for an indicted Hillary win in 2016, our goose is cooked as far as the Supreme Court go. But it’s not written in stone that the Supreme Court must have nine justices. Originally, there were six justices. Congress then added additional justices as we added federal circuit courts until it reached ten. Then in 1866, Congress passed the Judicial Circuits Act which said the next three justices to retire would not be replaced. That didn’t last long before in 1869, the number was returned to nine, which is where it remains today.

If the court were reduced back to 7, Scalia would not be replaced, and the next justice to die or retire likewise would not be replaced. You have two Dem appointees on the Court who are getting up there in the years (Breyer and Ginsburg), one Republican (Kennedy), and Thomas isn’t getting any younger either. It would seem to me that would preserve the balance on the court, and lower the stakes somewhat. But I think both sides like the high stakes, and therefore I don’t think this will ever happen.

6 thoughts on “Why Not Reduce The Court to 7 Justices?”

  1. The next change is more likely to split the unmanageable 9th circuit into two or three parts and add more justices, not subtract them.

  2. FDR wanted to make 15 justices. Nine old men holding up progress he said. There was a big hue and cry so it stayed at nine. One of the few times FDR didn’t get his way.

    1. Actually, he did get his way. The court packing scheme was a game of chicken with SCOTUS and the court swerved first. They had been striking down new deal programs over and over before Roosevelt brought that confrontation to a head. After that, they didn’t dare challenge him again, and they were largely irrelevant for the rest of Roosevelt’s administration.

  3. I’d go the other way. 11, 13, 15, 17 or even 19 to 21.

    More justices on the court means the power of each individual justice is reduced.

    Greater numbers would allow the SCOTUS to handle more cases too.

    I’d also add term limits for justices. Say 20 years. Stagger appointments to coincide with presidential terms. Term limits would encourage appointing justices based on experience, the life appointments encourage the appointment of younger judges whose politics are closely aligned with the sitting president.

  4. Here were some sample changes that would be potentially considered by the Article V Convention of States to restrain the power of the federal government:

    “The Founders would be astonished that the Supreme Court had become such a major political institution.

    They expected it to make legal decisions based on the law as decided by elected officials, including the elected officials that proposed and ratified the Constitution. In other words, they expected a non-political court because the judges would follow the original meaning of the words of the law and Constitution.

    But there can be no doubt that the Court now makes political decisions and is a political issue in and of itself.

    What if the Constitution contained the following two amendments relative to the Supreme Court?

    Amendment 1

    Any decision of the Supreme Court of the United States may be vacated by a vote of three-fifths of the state legislatures. Any decision so vacated shall be binding only on the immediate parties and have no precedential value in any other matter.

    Amendment 2

    The membership of the Supreme Court shall consist of thirteen justices. Each justice shall serve a term of four years. No justice may serve more than one term. Justices shall be appointed by states in alphabetical order on a rotating basis. Each state shall determine the manner of appointing its own justice.

    The first of these two amendments would give the political branches of state governments the ability to overturn POLITICAL decisions by the unelected Supreme Court. And the second of these two amendments would ensure that the appointment of Supreme Court justices would be permanently removed from presidential politics. In fact, it would be removed from Washington, D.C., entirely, bringing a much better form of checks and balances between the states and the federal government. (There would need to be a second section of Amendment 2 to create the details of the state rotation system). Every state would appoint a justice for four out of every sixteen years.

    These are the kind of amendments that could be considered at a Convention of States. This isn’t to say the Convention of States Project supports these two amendments necessarily–we only want to give our supporters an idea of how an Article V Amendments Convention could change our country for the better.

    Presidential elections focus on filling a small number of Supreme Court vacancies. A Convention of States can make permanent changes so that the Constitution is protected from an all-powerful group of nine DC-based lawyers.”
    – Michael Farris, Convention of States

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