Profile of the US Supreme Court Part 1: The Size of the SCOTUS Bench and Its Occupants
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The Supreme Court of the United States (SCOTUS) made headlines once again as it refrained from blocking a new Texas state law, Texas Senate Bill 8, that tightens restrictions on abortions. The latest flare-up in tensions over abortion policy includes the U.S. Justice Department suing the state of Texas over the law. Some elected officials and pundits have even renewed calls for a push to expand the number of justices on the U.S. Supreme Court. Justice Amy Coney Barrett has expressed concern that the public perceives the SCOTUS as a partisan institution.
Overall, though, the judiciary of the federal government is the most obscure of the three branches of government. The executive and the legislative branches get plenty of media coverage, but the public knows relatively little about the Supreme Court and gives the institution far less attention in comparison.
With this renewed scrutiny of SCOTUS, I felt this was a particularly good opportunity to write an overview of the institution — how it works, why it is the way it is, and so on. Even a summary of this is far too long for one post, so it will be broken up into several installments. This piece will deal with the size of the SCOTUS bench, how that has changed over time, who has occupied a seat on it, and whether we could soon some major changes to these aspects. The following parts are:
- Part 2: Public Perception and Knowledge of SCOTUS
- Part 3: The Development of SCOTUS Power Over Time
- Part 4: How Does a Case Get Before the Supreme Court?
Without further ado, let’s get into Part 1, which focuses on the size of the SOCTUS bench and the people who have occupied it.
Attempts at “court packing” — increasing the size of the SCOTUS so that a president can put preferred, like-minded justices on the bench — are not unprecedented. The court has also not always been at its current size of nine members. But the federal government’s judicial branch is also far more resistant to change in its ranks than its executive or legislative branches, in large part because of life terms for SCOTUS justices.
So, what would the chances of court packing be? Could there be any other major change to how SCOTUS operates in the near future? Before answering these questions and similar ones, it warrants a quick look through history at how the US Supreme Court’s composition has fluctuated over time.
The Size of the Supreme Court
The US Constitution, although it established the creation of the US Supreme Court in Article III, was particularly vague about its duties and composition. Almost everything about the formation of SCOTUS — and the rest of the federal judicial branch — was subsequently left up to the discretion of Congress, including the number of justices.
As a result, the size of the SCOTUS bench has fluctuated several times over history, but it’s been a long time since this last happened. In 1789, the number was initially set at six justices. This changed to seven justices in 1807, nine in 1837, ten in 1863, back to seven in 1866, and nine again in 1869.¹ While the 1860s saw a lot of changes in the Supreme Court’s structure in a short period of time, it has stood at nine justices ever since 1869.
There have been attempts to change the size of the SCOTUS since then, however. The most notable of these is President Franklin D. Roosevelt’s “court packing” attempt in 1937. As SCOTUS judges receive life-time tenures unless they are impeached, resign, or retire, many justices serve long into old age and even pass away while in office. The institution in FDR’s time was particularly old and none of the justices had any intention of retiring soon.
Frustrated with the Supreme Court striking down laws that were part of his sweeping New Deal program, FDR used the old age of the court as the basis for his court-packing plan. The bill proposed to Congress would have allowed FDR to appoint another justice for every current member of the Supreme Court that was over 70 years and 6 months old and who had served for 10 years or more, which would have amounted to six additional justices.² Even for someone as popular as FDR was at the time, there was considerable opposition to FDR’s plan even amongst members of his own party and members of the press sympathetic to his administration.³
FDR’s plan would prove to be unsuccessful, but he would also receive major opportunities to reshape the Supreme Court the old-fashioned way: nominating people to fill vacancies. He would nominate a whopping eight justices to the SCOTUS that were confirmed by the U.S. Senate— Hugo Black, James Byrnes, William Douglas, Felix Frankfurter, Robert H. Jackson, Frank Murphy, Stanley Reed, Wiley Rutledge — and elevate Harlan Fiske Stone to chief justice.⁴
The Exclusivity of SCOTUS Membership
Over 12,000 people have served in Congress.⁵ Only 45 men have occupied the Oval Office (Joe Biden is considered the 46th president, thanks to Grover Cleveland’s nonconsecutive terms technically being the 22nd and 24th president), but the president is not the only member of the executive branch. Hundreds of people have served in the U.S. Cabinet as well.
While there are a lot of other federal judges that serve on benches other than the Supreme Court, SCOTUS is also an incredibly exclusive group. Only 116 people have served as justices on its bench, 17 of whom have served as chief justice.⁶ Of course, that is thanks in large part to lifetime appointments. If we compare the three branches of government in terms of just their leadership, the chief justices in SCOTUS history are the most exclusive group. (There have been 54 different Speakers of the House.⁷ The number of Senate Majority Leaders comes close to SCOTUS chief justices with 21, but the post of majority leader was not developed until the early 20th century.⁸)
Could We Soon See a Major Change in the Composition of SCOTUS?
What are the chances that more justices are “packed” into the Supreme Court? Just about everything regarding the formation of SCOTUS is left up to Congress by Article III of the US Constitution. Right now, Democrats hold a slight majority in the US House and they have the thinnest advantage in the US Senate. (The US Senate itself is actually split 50–50 between Republicans and Democrats, but since the vice president serves as a tie-breaker for the Senate, Democrat Kamala Harris gives the advantage to her party.)
If you look at it solely on party lines, it may seem like Democrats are in good position to expand the SCOTUS bench. Yet even as partisan as elected officials and many voters can be, it is not that simple. It’s safe to say that not a single Republican will support “court packing”. But while the US House may have just enough Democrats to support it, US Senate Democrats don’t have any margin for one of their own to break with the party. Democratic Senators Kyrsten Sinema of Arizona and Joe Manchin of West Virginia are more moderate members who have bucked their party’s line on multiple notable occasions. As frustrated as progressives may be with the moderate elements of the Democratic Party, it’s unlikely that someone like Senator Sinema or Senator Manchin would support packing the courts.
Adding more justices is not the only way to potentially change who makes up the court, however. A more indirect way that has sometimes been proposed is term limits. There are several potential forms this change could take, which warrants a look at state supreme courts. They would not be as immediate a change in the composition of SCOTUS, but they still warrant examination.
How terms work for state supreme courts varies widely. With the exception of Rhode Island, none of them are lifetime appointments. They do not have term limits per se, but each term is for a set number of years. Massachusetts, New Hampshire, and New Jersey have mandatory retirement at 70 years old.⁹
The method of selection wildly differs across states, too. Some justices in state supreme courts are appointed by governors and eventually go up for a retention election after each term. Some states, on the other hand, have their voters select judges through partisan or nonpartisan elections. South Carolina and Virginia select state supreme court justices through a vote by state legislators.⁹
Could we see one of these changes to the US Supreme Court instead of court packing? It’s nearly impossible that elections by voters would ever happen. Perhaps there is an extremely slim chance that a mandatory retirement age or a single term of a set number of years would happen, but that would require a lot more work to make happen.
While the formation of SCOTUS is mostly left up to Congress, Article III of the Constitution clearly establishes that federal judges “shall hold their offices during good Behaviour”. Theoretically, that may be an ambiguous phrase — after all, what really constitutes “good Behaviour”? In practice, however, virtually no one has ever debated that it didn’t mean lifetime appointments and Alexander Hamilton talks about this very topic in Federalist Paper #78.
At this point, the only way term limits for SCOTUS could happen is through an amendment to the US Constitution because it is a fundamental change to an aspect of the Constitution. There are a couple of ways amendments can be proposed and a couple of ways they can be ratified, but in any case state legislatures are heavily involved. Thus, it isn’t just a matter of what members of Congress think but the various states as well.
The political implications of some sort of term limit, and who would support it, is less straightforward than for court packing. Here are a couple examples.
- What if we tried a mandatory retirement age of 70 years old? Unless they were exempt from the new rule, Stephen Breyer, Clarence Thomas, and Samuel Alito would have to retire. They are (as of this writing) 83, 73, and 71 years old, respectively.¹⁰ Thomas and Alito are considered conservative while Breyer is considered liberal. If President Joe Biden had the chance to fill all three seats, the court would theoretically start leaning to the left, as the 6–3 conservative advantage now would flip to a 5–4 liberal advantage. If those three justices were not grandfathered in and thus subject to the new mandatory retirement age, it is unlikely that Republicans would support it while Democrats would favor it.
- What if we had a set number of years? How Republicans or Democrats would view that is a lot less clear. That would depend on many other facets. How many years would a term be for? Would justices be allowed to serve more than one term? How would their terms be staggered? There is no way that all nine justices’ terms would be up in the same year. If you were to divide them evenly, you’d have to have either one or three justices’ terms finish in a particular calendar year (since there are nine total justices now).
In any case, there’s little chance we see a major change in the composition of SCOTUS (except for a justice’s retirement or death) anytime soon. If Democrats made gains in both the US House and Senate following the 2022 elections, the chance of adding justices might be greater. However, Biden has expressed reluctance in the past to pack the courts. That might be subject to change, but it’s hard to say at the moment. Regardless, don’t expect any significant changes to the selection process of Supreme Court justices in the near future.
- Elizabeth Nix. October 13, 2020. History. “7 Things You Might Not Know About the US Supreme Court.” https://www.history.com/news/7-things-you-might-not-know-about-the-u-s-supreme-court (accessed September 13, 2021).
- Lesley Kennedy. September 18, 2020. History. “This Is How FDR Tried to Pack the Supreme Court.” https://www.history.com/news/franklin-roosevelt-tried-packing-supreme-court (accessed September 24, 2021).
- Olivia B. Waxman. Time. October 16, 2019. “Some Democrats Want to Make the Supreme Court Bigger. Here’s the History of Court Packing.” https://time.com/5702280/court-packing-history/ (accessed September 24, 2021).
- Ballotpedia. “Federal judges nominated by Franklin Delano Roosevelt.” https://ballotpedia.org/Federal_judges_nominated_by_Franklin_Delano_Roosevelt (accessed September 24, 2021).
- U.S. House of Representatives. January 21, 2021. “Total Members of the House & State Representation.” https://history.house.gov/Institution/Total-Members/Total-Members/ (accessed September 14, 2021).
- Supreme Court of the United States. “Justices 1789 to Present.” https://www.supremecourt.gov/about/members_text.aspx (accessed September 24, 2021).
- U.S. House of Representatives: History, Art, and Archives. “Speaker of the House Fast Facts.” https://history.house.gov/Institution/Firsts-Milestones/Speaker-Fast-Facts/ (accessed September 24, 2021).
- U.S. Senate. “Complete List of Majority and Minority Leaders.” https://www.senate.gov/senators/majority-minority-leaders.htm (accessed September 24, 2021).
- Ballotpedia. “State supreme courts.” https://ballotpedia.org/State_supreme_courts (accessed September 25, 2021).
- Supreme Court of the United States. “Current members.” https://www.supremecourt.gov/about/biographies.aspx (accessed September 26, 2021).
