February 5th – a date that shall live in historical importance. Sure, you’re probably thinking that we finally had a Super Bowl (LI) that was truly exciting. Those who were either emotionally or financially involved had a real gut gripper. But what most of us forgot or never knew as they were glued to their hi-def TV’s was that something even more significant was unveiled on an earlier February 5th. The year was 1937.
In the sixth of his Fireside Chats (President Franklin Delano Roosevelt’s equivalent of President Donald J. Trump’s Twitter account), President Roosevelt unveiled his proposal for increasing the size of the number of siting Justices on the Supreme Court to as many as fifteen. The Judicial Procedures Reform Bill of 1937 as the proposed legislation was officially known, was Roosevelt’s response to the Supreme Court’s striking down as unconstitutional several initiatives that had been implemented as part of FDR’s New Deal.
For every living American, having a Chief Justice and eight Associate Justices seems as though nine is the sacrosanct number for the membership of the high court. But while the Constitution required the creation of a Supreme Court, it left to the Congress the authority to determine the number of members of that august body. Originally, the number was set at six by the Judiciary Act of 1789. Considering that there was essentially no body of law yet written by the Congress, that seemed like more than a reasonable number of Justices and that remained the size of the court until Congress increased its number to nine in 1869.
Given the vastness of the body of law which has been promulgated, I believe that a strong argument could be made for increasing the number of Justices to more than it’s present size, perhaps eleven. And I would urge President Trump and the Congress strongly to consider legislation which would accomplish that end. Concurrent with the increase in the court’s size, I would also urge that a term limit of twenty-five years or age 75, whichever comes later, be imposed on any new Justices who were appointed.
There is little question in my mind that the judiciary at all levels has become highly politicized. Increasing the number of Supremes would reduce the amount of pressure which any specific Justice might feel in evaluating and making their rulings. And lest anyone suggest that this would merely be a ploy by the Trump administration to gain leverage in the court, I would urge the Congress make this change effective January 1, 2021.
This is perhaps the most apolitical suggestion that can be offered to make our Supreme Court more judicial. None of us can predict what political philosophy will have the ascendance years from now. So new appointees would reflect the spirit and mood of the country as expressed in the person whom we would then elect President and to the Senate. Having a defined and limited term, political pressure such as was applied to Justice Ruth Bader Ginsburg to retire during the Obama presidency would be nullified. But most importantly, this should free the then sitting Justices to do their duty in an unbiased manner without feeling as much political pressure as now exists.