The Supreme Court was established by Article III of the Constitution, and Congress given the task to determine the number of Justices which serve in the Court.
The Judiciary Act of 1789 provided for 6 justices.
Lame duck Federalists in Congress tried to reduce the size of the Court to 5 in 1800, in a failed attempt to deny newly elected President Jefferson of a potential appointment. Democrats repealed the Federalist attempt, leaving the number at 6. In 1807 Congress gave Jefferson an additional appointment, increasing Court size to 7.
In 1837, the number was increased to 9, then 10 in 1863.
A series of back and forth adjustments resulted in the 9 we have today.
Set by the Judiciary Act of 1869:
http://memory.loc.gov/...
Now, when the subject of changing the number of Justices is brought up, the case of FDR's obvious attempt to pack the Court [Judiciary Reorganization Bill of 1937] invariably surfaces.
Here is a short but good analysis of this failed attempt, here.
http://www.americanchronicle.com/...
The Wiki also has a lengthy and detailed description of this:
http://en.wikipedia.org/...
FDR was clearly and directly behind this attempt to pack the Court, he was clearly frustrated by repeated Court decisions which challenged aspects of the New Deal.
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Now, let me stop that narrative right here.
I submit that there are few parallels between what happened with FDR and the need to increase the size of the Supreme Court today. The drive to change the size of the Court is not going to be lead by President Barack Obama. I will guarantee that if it surfaces, the Right Wing Wurlitzer will do its best to try to paint it that way, though.
Unlike FDR's frustrations with a Court that stymied his New Deal, this time the political pressure is not from within the Executive Branch, or even within Congress [yet], it's truly from the People of the United States itself.
It's not just the obvious attraction of getting a more balanced and favorable politically Supreme Court that drives my observation; I freely admit that bias. I submit that the REhnquist/Roberts Supreme Court has displayed an ideological agenda, and has by default entered into the stream of American politics. Felix Frankfurter had it right when he called out 'the political thicket' .. the Supreme Court has simply crossed the line too many times.
The Supreme Court has shown it's out of control, and it's up to us, the People to petition Congress to start the process and effect change.
This social change is happening astonishingly rapidly. It is clear today that Roberts Court is not in touch with America, American values and the overall direction we are heading in. The Roberts Court is not going to change; any appointment President Obama makes will be a replacement, but this will not change the basic makeup of the Court. And it is the basic makeup of the Court that is the core issue.
Meanwhile, change is here, it's growing: it's growing faster than many could have imagined, and I predict we are going to see serious confrontations in the near future between the nature of the Roberts Court and the rest of Government, as well as the desires of citizens.
Witness the actions taken to legalize same sex marriage as a primary example of this change. Public opinion nationally across a wide range of issues pertaining to financial issues related banking laws and regulations, property rights, freedom of the individual and rejection of corporate influence in the day to day lives of the average American Citizen.
Yes .. one could make the easy argument that "It's the Left that is driving this", but on that part I have to disagree, and vehemently. This sense of frustration and change encompasses many people who consider themselves to be 'conservative', 'libertarian', 'moderate'. The power of corporations, the stultifying effect of the some recent Robert's Court decisions on rights of the individual crosses ideological lines.
There is a marked and growing frustration with how personal privacy, banking and finance laws impact Americans in their day to day lives I hear from co-workers who vote Republican or Libertarian. It is a palpable anger; it's not just us on the left.
As Congress becomes more representative of the voice of the People in the elections of 2010 and 2012 [hopefully], it will be increasingly obvious that the Roberts lead Supreme Court will provide the major roadblock to change. And Congress can do something about this, by increasing the size of Supreme Court Justices. Allowing President Obama to appoint more reasonable and less activist judges to counterbalance the extreme opinions of Scilia, Alito, Thomas and Roberts is how Congress can drive this change.
In the spirit of that change, we need to start putting the pressure on Congress to make this happen. I have written Patrick Leahy and have put the bug in his ear about this issue; I encourage others to do the same.
I feel that the size of the Supreme Court will eventually change, starting first at eleven Justices, but eventually to be potentially more than that. The country has grown a lot since 1869. It's time to get our Supreme Court to be a bit more representative of reasoned judicial opinion, rather than agenda driven politics. Increasing the size is one way to moderate the nature of the Court.
What better time than now to start pushing for this change?
Join me in writing The House and Senate leaders and recommending that they consider this change. It is within the power of Congress to do this, and slowly we can build this effort up over time to its fruition. I believe that by 2012 the increasingly disconnected state of affairs between the Judiciary and the Legislative/Executive branches will become readily apparent.
http://judiciary.senate.gov/...
http://judiciary.house.gov/...