From Six to Ten to Nine: The Evolution of the Supreme Court

From Six to Ten to Nine: The Evolution of the Supreme Court

In recent decades, many controversial Supreme Court decisions have come down to a 5-4 vote, leaving important policy decisions in the hands of whomever the deciding vote – or swing vote – is for each case. At least twice – including in the present day – the Supreme Court has divided into group of 4, 4, and 1, leaving the same justice as the swing vote, and thus the ultimate authority on American constitutional law, for a variety of important issues. Former Justice Sandra Day O’Connor famously performed this role in landmark cases such as Planned Parenthood v. Casey and Bush v. Gore. The importance of 5-4 decisions seems ridiculous, given the absence of any considerations of 5-4 decisions in the Constitution; however, it is impossible to determine exactly what the Framers anticipated when, in Article III of the Constitution, they wrote in vague terms that, “the judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Let’s take a quick look at how the Supreme Court arrived at its current state.

Six Justices

In 1789, Congress passed the Judiciary Act, which called for a Supreme Court composed of six justices. From 1789-1807, John Jay, John Rutledge, Oliver Ellsworth, and John Marshall served as Chief Justice. Many of the court’s opinion’s during this time were unanimous, and there is no record of any significant difficulties over disagreements between one half of the court versus another, even though momentous decisions were handed down, such as Marbury v. Madison, which established the principle of judicial review and thus contributed directly to the importance of today’s 5-4 decisions.

Seven, Eight, Nine, Ten

In 1807, Congress expanded the size of the Supreme Court to seven justices, and repeated the expansion of the court by one justice until the court grew to ten justices in 1862. John Marshall continued to serve as the Chief Justice until 1835 as the court continued to avoid judicial gridlock despite hearing landmark opinions, such as McCulloch v. Maryland. The decision in McCulloch, which approved the establishment of a national bank by Congress, paved the way for congressional reliance on the Necessary and Proper Clause together with the Commerce Clause to exercise broad national power.

Court-Packing and the Modern Day Nine

After the Judiciary Act of 1869 brought the size of the Supreme Court back to nine justices, it appeared that the size of the court had finally found an equilibrium. However, in 1937 President Franklin Delano Roosevelt attempted to push the Judicial Procedures Reform Bill through Congress. Roosevelt, frustrated by the Supreme Court’s decision to overturn some of his New Deal policies, wanted to add justices to the court who would agree with him. Indeed, the New Deal Supreme Court cases were among the first controversial 5-4 decisions. Cases such as Carter v. Carter Coal left vital questions of national policy and constitutional law to a swing vote. The Judicial Procedures Reform Bill never made its way into American law, and the Supreme Court has continued to decide many controversial cases by 5-4 votes.

Today, Justice Anthony Kennedy holds the swing vote in the Supreme Court, meaning that four of his fellow justices on the court consistently vote for decisions favorable to a conservative ideology, his other four colleagues consistently vote for more liberal decisions, and Kennedy votes differently based on the issue at hand. In the five years alone, Kennedy has had the last word on campaign finance (Citizens United v. Federal Election Commission), prison overcrowding (Brown v. Plata), abortion (Gonzalez v. Carhart), and detainment of suspected terrorists (Boumediene v. Bush).