Supreme Court 9: Final?

Associate Justice Robert Jackson once said of the U.S. Supreme Court:

We are not final because we are infallible, but we are infallible only because we are final.

In one sense, that's true. There is no court to which Supreme Court decisions can be appealed.

But, in another sense, they're not necessarily final. There are ways of reversing Supreme Court decisions. In the next few posts in this series, I will discuss some of those methods. The first of those is "court packing".

As I noted here, the Constitution did not establish the size of the Supreme Court. By act of Congress, it has been established that there are nine justices on the Court. That number was smaller in the early history of the Court.

When Democrat Franklin Roosevelt became president in 1933, the Republican Party had held that office for 12 consecutive years, and for 28 of the previous 36 years. Seven of the nine Supreme Court justices had been appointed by Republican presidents, one by Taft, two by Harding, one by Coolidge, and three by Hoover. That lineup remained unchanged through Roosevelt's first term.

During that first term, the Supreme Court found parts of the Roosevelt's "New Deal" program to be unconstitutional. The main issue was whether to read Article I, Section 8, clause 3 of the Constitution narrowly or expansively. That so-called "Commerce Clause" reads as follows:

The Congress shall have Power ... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

Roosevelt was miffed that the Court declined to interpret that clause liberally enough to allow the expansion of federal power that the president and the Democrat-dominated Congress had enacted in response to the Great Depression.

At the beginning of Roosevelt's second term, he proposed the creation of new associate justice positions on the Court. That "court packing" plan was disguised as an effort to aid older justices in keeping up with their workload. There would be one additional justice for every incumbent justice over the age of 70 who declined to retire, subject to a maximum of six additional justices.

But the real impact was obvious. It would have allowed Roosevelt to immediately appoint six additional justices, thereby reducing the seven Republican appointees to a minority on a 15-member Court. With 76 Democrats in the Senate, FDR's nominees would probably easily have been confirmed.

The Senate rejected the court-packing plan, but Roosevelt is generally seen as having lost the battle, but won the war. The justices seem to have taken the hint. They began allowing greater government regulation of the economy. And the older justices began to retire.

By the end of Roosevelt's record tenure as president, in 1945, he had appointed seven of the justices, and had promoted one of the others to chief justice.