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A Last Lingering Legacy

March 1801. Secretary of State John Marshall was working late on his last day in office. Thomas Jefferson and his Secretary of State would take office on the morrow. President John Adams and the lame-duck Federalist Congress had created a number of new judicial positions and had appointed loyal Federalists to them.

It was Marshall’s duty, as custodian of the Great Seal of the United States, to finalize those appointments (among them, his own appointment as the next Chief Justice). When the clock struck midnight, Marshall had sealed most of the commissions, including his own, but he left several undone on the desk for his successor, Madison.

One of those was an appointment as a magistrate in the District of Columbia, for a man named Marbury. Madison refused to seal and transmit the commission, and Marbury sued Madison in the Supreme Court to compel him to do his duty. The case was called Marbury v Madison, and it was decided two years later.

Writing for the Court (whose size had been twice changed by Congress in the interim*), Marshall said that under the law, Marbury was entitled to redress, but that the law that gave him the right to sue in the Supreme Court was unconstitutional because the Constitution did not authorize the Court to have original jurisdiction.

Marshall thereby successfully asserted the right and obligation of the Supreme Court to judge the constitutionality of laws, even as he denied redress to the very appointment he himself had failed to seal. The Federalists would never again control either Congress or the Presidency, but Marshall and his fellow judges would be around thirty years later to plague Andrew Jackson.

As Amy Coney Barrett is confirmed as a Justice of the Supreme Court at this writing, it is worth stepping back for perspective. The opening story shows how, almost from the beginning of the Republic, partisan interests have shaped judicial appointments and determined congressional decisions to create or abolish judicial seats. 

That remains true today. Since Chief Justice Burger replaced Earl Warren in 1969, conservatives have been on a marathon campaign to control the judiciary and thereby put the brakes on liberal programs from the New Deal and Great Society. They have largely succeeded. The last time a liberal justice succeeded a conservative was when Thurgood Marshall succeeded Tom Clark in 1965. Conservatives have succeeded liberals or centrists several times since then. Barrett, replacing Ruth Bader Ginsburg, will be the latest.

Appointing right-wing judges has been a central feature of the Trump administration. A well-oiled machine moves nominees from recommendation by the Federalist Society to nomination by Trump to confirmation by an obedient Senate under Majority Leader Mitch McConnell. Indeed, continued Republican support for Trump may be largely explained by this record of judicial appointments.

Like the Federalists of yore, as Republicans contemplate the increasingly likely demise of the Trump presidency, they are determined at least to lock in control of the federal judiciary, and especially the Supreme Court.

Like the Federalists of yore, as Republicans contemplate the increasingly likely demise of the Trump presidency, they are determined at least to lock in control of the federal judiciary, and especially the Supreme Court. As is well-known, Barrett’s appointment will give the conservatives a seemingly unassailable 6-3 majority, to cap the plurality of lower court judges they have confirmed.

In this highly partisan context it will scarcely be surprising if the incoming Biden administration, with control of the Senate, avails itself of the power to increase the number of lower court judges as well as Supreme Court justices. The lower court expansion is almost a given. Action on the Supreme Court may wait (given the institutionalist Biden’s reluctance) to see if the conservative bloc overplays its hand. 

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Remember two things about Roosevelt’s court-packing plan, in response to a hostile Supreme Court of that time. First, floating the proposal did cost FDR his progressive majority in the 1938 elections.

impeachment unavoidable

But second, the enunciation of the plan was shortly followed by a decisive shift on the Court to supporting the New Deal. It was called “The Switch in Time that Saved Nine.”

John Peeler

*Since 1789, Congress changed the maximum number of Justices on the Court several times. In 1801, President John Adams and a lame-duck Federalist Congress passed the Judiciary Act of 1801, which reduced the Court to five Justices in an attempt to limit incoming President Thomas Jeffersons appointments to the high bench. Jefferson and his Republicans soon repealed that act, putting the Court back to six Justices. And in 1807, Jefferson and Congress added a seventh Justice when it added a seventh federal court circuit.

In early 1837, President Andrew Jackson was able to add two additional Justices after Congress again expanded the number of federal circuit court districts. Under different circumstances, Congress created a 10th circuit in 1863 during the Civil War, and it briefly had a 10th Supreme Court Justice. However, Congress after the war passed legislation in 1866 to reduce the Court to seven Justices. That only lasted until 1869, when a new Judiciary Act sponsored by Senator Lyman Trumbull set the number back to nine Justices, with six Justices required at a sitting to form a quorum. President Ulysses S. Grant eventually signed that legislation and nominated William Strong and Joseph Bradley to the newly restored seats.

Source: “Why does the Supreme Court have nine Justices?

July 6, 2018 by NCC Staff, Constitution Daily, National Constitution Center