Can We Add More Justices to the Supreme Court?

iadd justices to the supreme courtUpset by the addition of Brett Kavanaugh to the Supreme Court, many people suggest the idea to add justices to the Supreme Court.  For Democrats, the idea would add two more spots available for a Democratic president to put more liberal people on the court.

Can we add justices to the Supreme Court?

The original constitution does not specify the number of justices for the Supreme Court.  By 1801, Congress set the number of justices at five.  That was changed in 1807 to increase the number to seven and again, in 1837 the number changed to nine.  By 1863, the number rose as high as ten members.

Things looked okay until Andrew Johnson became president after the assassination of Abraham Lincoln.  Johnson was very unpopular.  By 1866, he faced a hostile Congress and even impeachment.  In an effort to deny him the chance to name new justices to the court, Congress passed a new number.  This time, they reduced the court from ten down to seven.  No justices would be fired, but the vacancies would occur as they retired.  By 1869 only two justices had left so the number remained at eight.  The Judiciary Act of 1869 set the number at nine—where it has remained for over one hundred years.

The idea to add justices to the Supreme Court popped-up again in 1937.  President Franklin Roosevelt passed new legislation to fight the Great Depression.  The Supreme Court kept striking down his laws.  Upset with this and feeling the court was holding back the country in the depression, he tried to pass new legislation to increase the size of the court.  Roosevelt would nominate justices he thought would be favorable to him.  Sounds like the same as the Democrats’ idea floating around now.

Roosevelt’s plan intended to add new justices (up to a maximum of six) as each of the sitting justices reached the age of 70 1/2.  His bill almost passed but failed because of both Republican and Democrat opposition.

So, it is possible to add justices to the Supreme Court today.  Given the climate in the Congress now and the lack of cooperation, it would be difficult to do so.

It’s also interesting to know that the constitution does not say what the qualifications for a justice should be.  They don’t have to even be a lawyer or a judge.

Is there a possibility that President Trump could appoint himself when the next vacancy comes up??

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About Colin Nelson

Colin T. Nelson worked for 40 years as a prosecutor and criminal defense lawyer in Minneapolis. He tried everything from speeding tickets to first degree murder. His writing about the courtroom and the legal system give the reader a "back door" view of what goes on, what's funny, and what's a good story. He has also traveled extensively and includes those locations in his mysteries. Some are set in Southeast Asia, Ecuador,Peru, and South Africa. Readers get a suspenseful tale while learning about new places on the planet. Colin is married, has two adult children, and plays the saxophone in various bands.

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