Today I will have the honor of addressing the Seventh Circuit Bar Association and the Federal Bar Association in Chicago. I will be speaking at 2:30 pm on the Supreme Court’s history and current issues. I will be flying in this morning from Houston and look forward to seeing my home town. I will be in Chicago for the first two games of the National League Championship so I do not want any former classmates or childhood friends to hesitate to unload that extra ticket to Wrigley.
The Supreme Court has started the new term with only eight members due to the passing of Justice Scalia and the refusal of the Senate to take up the confirmation of Judge Merrick Garland. I have long argued that the Supreme Court is manifestly too small even with the full nine justice court. Over ten years ago, I proposed a reform of the supreme court that would expand it to 19 members.
The constitution itself does not specify the number of justices, and that number has actually fluctuated through the years. The nine-member court is a product not of some profound debate or study, but of pure happenstance. In fact, when the court first convened in 1790 in New York, at the Royal Exchange Building, it had six members. After that time, the size of the court expanded and shrank – largely with the number of federal circuits. Since justices once “rode circuit” and actually sat as judges in lower courts, Congress would add a justice when it added a circuit – or reduce the court with the elimination of a circuit. Thus, when a 10th circuit was added in 1863, a 10th justice was added at the same time. In 1869, the court happened to have nine members for the nine circuits. That is how we ended up with this size of a court.
Ever since the supreme court rested at nine members, we have repeatedly had problems of 5-4 splits, with one or two swing justices dictating the outcome of cases. With the increasing longevity of justices, such divisions have become stagnant and bitter. We often find ourselves captive to the idiosyncratic views of a couple of justices’ views on privacy, or federalism, or free speech. We also have had repeated conflicts over replacing justices because the importance of each jurist is so overwhelming on such a small court.