There is NO constitutional requirement that there be nine members of the Supreme Court! While the Constitution does establish a Supreme Court it leaves up to Congress to decide how many justices there should be. We could legally have a Supreme Court of just one person or 320 million people if Congress so wishes.
For the very first Supreme Court in 1787 Congress decided to have six justices and George Washington appointed all of them. In 1807 the number was increased to seven and in 1837 it was bumped up to nine. In 1866 Congress cut the number back to 7 purely to prevent President Andrew Johnson from appointing any justices at all! In 1869 the number went back up to nine. In 1937 President Franklin Roosevelt attempted to get the number up to 15 so he could pack the court with people who agreed with him but Congress refused to go along.
So all this debate about Obama appointing and the Senate opposing is pretty moot considering that nine justices is an artificial number and Congress can change it at any time.
6 comments:
Thanks for the info. Interesting.
The writer is correct that the constitution is silent when it comes to number of justices. The constitution left it up to the congress to determine the number of justices there would be.
As the writer notes, the congress has changed the number several times since it's inception. The last time a change was made by the Congress was in 1869, when it was set a nine.
The number of justices has been at nine for almost 150 years, which debunks the writer's assertion that its moot and an artificial number.
Now...whether Obama should appoint a nominee in his last year in office is entirely a different discussion.
He should not. End of discussion.
Of course he should nominate. He has 11 months left in office. The Presidency is for a 4 year term. Not 3 years and 1 month. A Republican in the White House wouldn't hesitate for a minute to make a nomination if the situation was reversed. Whether Congress approves his nominee? That's another question entirely.
The President nominates with the advice and consent of the Senate. Maybe if Obama asked for advice from the Senate he would stand a better chance of getting consent.
3:51. Betcha anyone he nominates will have already gotten unanimous consent by the Senate for a lower court posting. Let's see how the Senate backpedals on that.
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