The New Yorker magazine of March 22, 2010, reflects on a Supreme Court without justice Stevens. In it we read,
John Paul Stevens, who will celebrate his ninetieth birthday on April 20th, generally bides his time. Stevens is the Court’s senior Justice, in every respect. He is thirteen years older than his closest colleague in age (Ginsburg) and has served eleven years longer than the next most experienced (Scalia). Appointed by President Gerald R. Ford, in 1975, Stevens is the fourth-longest-serving Justice in the Court’s history; the record holder is the man Stevens replaced, William O. Douglas, who retired after thirty-six and a half years on the bench. Stevens is a generation or two removed from most of his colleagues; when Roberts served as a law clerk to William H. Rehnquist, Stevens had already been a Justice for five years. He was the last nominee before the Reagan years, when confirmations became contested territory in the culture wars (and he was also, not coincidentally, the last whose confirmation hearings were not broadcast live on television). In some respects, Stevens comes from another world; in a recent opinion, he noted that contemporary views on marijuana laws were “reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student.”
I was surprised, when recently discussing the Court with an educated friend that he did know know that the number of Justices on the Court is not invariantly set at nine. I learned that from Dan Smoot some 40 years ago when the John Birch Society wanted to impeach Earl Warren.
There hadn't always been nine on the Court. The Judiciary Act of 1789 set the number of Justices at six. In 1863, there were ten Justices on the Court.
We read that various numbers of Justices comprised the Supreme Court,
Since the passage of the Judiciary Act, Congress has occasionally altered the size of the Supreme Court, historically in response to the country's own expansion in size. Membership was decreased in 1801 to five, then increased to seven members in 1807, to nine in 1837, and to ten in 1863. By 1869, Congress had reduced the Court's size to nine members, where it has remained since.
When Franklin D. Roosevelt's (FDR) New Deal legislation passed Congress, where the Democrats enjoyed a majority, the Supreme Court struck down a good number of the bills as unconstitutional.
This episode in FDR's presidency has been revisited in "Supreme Power: Franklin Roosevelt vs. the Supreme Court," by Jeff Shesol, and reviewed on line.
By then, the idea that there were only nine Justices (there are ten slots, BTW) had taken hold, and besides, FDR did not have the votes. In testing the waters whether he did or not, when FDR conferred with then Vice President, Jack Garner:
Jack Garner marched up the White House steps before the morning coolness had left the air. The President received him at once, and greeted him with a great show of cordiality. Garner told him that he had come to talk about the court fight, and the President nodded acquiescently.
"Do you want it with the bark on or the bark off?" Garner asked.
The President replied he didn't understand the country phrase, and Garner explained that in his part of Texas people asked for it "with the bark off" if they wanted the naked truth, whereas if they desired their feelings be spared they asked to have it "with the bark on." The President threw back his head and laughed his hearty laugh. He would have it "with the bark off," then, he said.
He got it. Garner informed him bluntly that he was licked, and he had best fold his tent and steal way from the court issue as rapidly as possible. The President shrugged his shoulders. He was ready to accept Garner's appraisal of the situation.
So the Court did not get "packed," as they say, and Earl Warren did not get impeached. No one rocked any boats.
The Neocons, who were coming into the Party at the time I was active in Youth for Goldwater, cautioned that impeachment, court packing, and the like could backfire. If the neocons resorted to it, one day it would benefit them, the next day, it would not. Like deem and pass, it was an expediency that could come back to haunt.
No, the neocons, ever the realpolitikers, cautioned. The neocons would work up from the precinct level to get control of the Party machinery. Cynically, the name of Lenin was evoked, but it was just for show, as they were convinced they'd beat the pinko liberals at their own game.
In the end, it seems the country does not like to make decisions,and deadlocks are just fine. Even in the Senate, a 59 - 41 vote is not enough to produce a "majority" at least in some cases. But with Congress and the President and the Republicans and Democrats stymied, maybe the Neocons were onto something by keeping the court a simple majority, where 5 to 4 did change the laws of the land ... I mean, "interpreted them."
Only the court, which the conservatives have slowly filled with their brethren, has escaped the deadlock due to its odd number.
What if the empty tenth Justice positioned were filled?
So far, there is no stomach for that, as least so long as the other two branches seem unable to move.
For now, the 5 to 4 set-up of the Court moves forward without deadlocks ... the one branch of government making decision after decision.
The neocons are moving forward and there is nothing much in their way.