Luke Bierman's analysis of the Supreme Court on May 14, 2016, shows that today's political stalemate over the Merrick Garland nomination is outside the norm in American history.
Elon University School of Law Dean Luke Bierman was featured in the Wall Street Journal on May 14, 2016, with a guest column that traced the evolution of the size of the U.S. Supreme Court from the earliest days of the Republic.
In “Eight Justices Won’t Do—but Six Were Fine for 1789” (subscription required), Bierman points out that politics has always played on a role in determining the number of justices on the Supreme Court, but the size has always been altered through official acts of Congress, not by refusals to hold nomination hearings as is the case with the impasse over current nominee Merrick Garland.
The column was also showcased less than a week later on the front page of the American Law Institute’s website.
Bierman’s legal scholarship, focusing on judicial selection, justice system reform, state constitutional law and ethics, has been published in a variety of national law reviews. In addition to the Wall Street Journal, his legal analysis and commentary on legal education as well as ethics have been published or featured in The New York Times, Washington Post, Albany Times-Union, National Public Radio, Greensboro News and Record, Raleigh News & Observer, WRAL-TV, UNC-TV, Huffington Post, National Law Journal, New York Law Journal and other national and regional news media.
Bierman has served as dean of Elon Law since June 2014.
The full Wall Street Journal column:
“Eight Justices Won’t Do—but Six Were Fine for 1789”
By Luke Bierman – lbierman@elon.edu
President Obama and Congress are at an impasse over the next Supreme Court justice. The president wants an immediate confirmation hearing for Merrick Garland, his nominee to replace the late Justice Antonin Scalia, arguing that the Supreme Court must have nine justices. Mitch McConnell, the Senate majority leader, is averse to considering the nominee during an election season and thinks the court can operate with eight justices until after the election, even if that means some 4-4 tie votes that will not establish binding precedent.
Lost in all this is the reality that the size of the court isn’t constitutionally ordained. The tradition of seating nine members hasn’t changed since the 1860s, but before that the number bounced around like a basketball in the Supreme Court’s gym. Besides, even if it made sense to have nine justices in 1869, does it still make sense in 2016?
The court was originally made up of six justices, as specified by the Judiciary Act of 1789. The figure represented a compromise regarding equal representation of Northern and Southern justices. But there was a sense in Congress that the size of the court would be as malleable as its workload, whether that was in Washington or in the regional circuit courts on which the early justices also served.
That’s exactly what happened. From the nation’s founding through early Reconstruction, the court’s size ranged from the original six to a high of 10 to reflect the changing judicial needs of an expanding country and the raging partisan controversies of the times, such as sectionalism and slavery.
Politics played a role from the outset. Congress reduced the court’s size to five in 1801 to prevent appointments by the newly elected Democratic Republicans—who restored the number of justices to six a year later to make sure that newly elected President Thomas Jefferson would get to make an appointment to the court.
In 1807 Congress increased the number of justices to seven to provide representation for the new states on the western frontier around the Ohio River Valley. Although the need for better judicial service in the expanding country became apparent in the ensuing decades, it was not until the Judiciary Act of 1837 that the number of justices increased to nine (while the states were reallocated among the judicial circuits to ensure better judicial service around the country).
These changes reflected administrative necessity. But they also inured to the political benefit of President Andrew Jackson, who then was able to appoint another Tennessean, John Catron, to the court.
This arrangement remained intact until the Civil War and Reconstruction. Congress expanded the Court to 10 in 1863 to provide Abraham Lincoln with an influential appointment, Stephen Field, a Californian and Democrat who offered the president judicial support on controversial issues affecting the war effort while supplying representation to the new states of the far West. The court lost justices via the Judiciary Act of 1866, in an effort to deny appointments to President Andrew Johnson. It wasn’t until 1869 that Congress settled on nine justices, once President Ulysses S. Grant was in office.
And thus it has been ever since. Even during the Great Depression, the exceedingly popular Franklin Roosevelt was rebuffed by the Senate in his 1937 effort to pack the court by increasing the number of justices on a court that was resistant to his policy direction. Even as America grew to a nation of hundreds of millions of people, there was no change in the size of the high-court bench.
Despite the early manipulations to its size and the lack of constitutional specification, a Supreme Court of nine justices has become hallowed as the number we prefer, and we consistently have filled that ninth seat relatively quickly, with the 125 days it took to confirm Justice Louis Brandeis in 1916 being the longest period to resolve a nomination, even in a presidential-election year. The 237-day wait between President Obama’s nomination of Judge Garland and the November election, covering parts of two Supreme Court terms, would constitute by far the longest resolution of a nomination, which could take much, much longer considering the uncertainty surrounding the presidential and senatorial elections.
As we the people approach the sesquicentennial of the current size of the Supreme Court, this stalemate between the president and the Senate seems out of touch with the more recent historical record. After almost 150 years, eight justices seem too few, and 10 seem too many, making a bench of nine just right. Get on with it.
Mr. Bierman is the dean of the Elon University School of Law in North Carolina, where he is a professor.