'Why Did They Set It At Nine?': Fitzgerald Asks Legal Expert About 1891 Supreme Court Enlargement

Añadido: 2026-05-24

[00:00:00]We now proceed to the gentleman from Wisconsin, Mr. Fitzgerald, for 5 minutes. Thank you, Chairman. Mr. Ross, for the first 80 years of our nation's history, the size of the Supreme Court changed with some regularity.

[00:00:13]Why was that?

[00:00:16]Microphone. Microphone.

[00:00:20]Pardon. You know, the expansion of population, originally every the justices were chosen largely on geographical grounds. And you know, every of course every the justices rode circuits. You know, the justices wore two hats until 1891. You know, they they served as circuit court judges and they also and served as US Supreme Court justices.

[00:00:41]And in a smaller nation, you know, there were only 4 million people in the 1790 census, you know, there's less need, you know, for a larger court. As the country expanded, you know, as the number of circuits expanded, you know, the the number increased, but only to nine. You know, from five to nine, maximum of 10, and then only for for you know, six years from 1863 to 1869 there were 10. And since 1869, we've had nine. And so you know, that's a long history, you know, a century and a half with nine members. And it's worked very well so far and you know, in my opinion, you know, that ought to be the number.

[00:01:19]Well, let me follow up then. So, in 1869, when Congress did pass that Judiciary Act, why did they set it at nine justices at that point, do you feel? And and if the court divided and that would be you know, five to four. If you have 10, then you know, the court could be split.

[00:01:36]You know, if the court splits, then you know, the lower court decision stands.

[00:01:40]But it's generally better to have a decisive decision of the court. So, you know, nine you know, it permits the court to divide you know, one way or the other.

[00:01:51]And as been alluded to a couple times, when President Roosevelt tried to unsuccessfully in '37 to expand the court to 15 justices.

[00:02:01]Um was there any sound logic to this expansion that the president was using or making or was it merely an overreaction to a Supreme Court that had repeatedly struck down the the New Deal?

[00:02:16]Historians are unanimous in we're virtually unanimous and historians are never unanimous in anything, but about as unanimous as they can be about the court packing plan of 1937 was politically motivated. You know, the Supreme Court had struck down a number of significant New Deal statutes in the previous 2 years and the Social Security Acts and the National Labor Relations Act were coming up for adjudication before the court.

[00:02:44]You know, these were the signature legislation of the New Deal and Roosevelt was understandably worried that the court would strike those down.

[00:02:54]And so his remedy you know, was to increase the number of justices to pack the court you know, so that the Social Security Acts both the old-age pension and the unemployment compensation laws and the National Labor Relations Act which was hugely important at the time of industrial unrest would be a secure.

[00:03:14]And so Franklin Roosevelt originally claimed that he was doing this because the Supreme Court was overworked and the justices were geriatric. You know, there were six of them who were over the age of 70.

[00:03:26]That's why he chose six. One new justice for every justice who was over the age of 70. But the older justices were for the most part quite vigorous including Louis Brandeis and Chief Justice Hughes was in peak of health you know, despite his his age over 70. And so it was so disingenuous that it was you laughed at. And so Roosevelt about a month after he introduced the plan, admitted that his motives were, frankly, political.

[00:04:00]By the way, the then chair of the House Judiciary Committee, Hatton Sumners, Democrat, opposed Roosevelt's plan from the very first step. You know, that's why Roosevelt introduced it in the Senate rather than in the House. Very good. Thank you.

[00:04:16]So, there's already this morning there's been some attacks on the Supreme Court by some of my colleagues on the other side over um well, just as former clerk as a former clerk, Mr. Capozzi, you state in your testimony that if too many come to view the Supreme Court as a partisan actor rather than a neutral arbitrator of law, the losing parties will be tempted to disregard court orders. What would that mean for our government as a whole? I know that's a big question.

[00:04:47]It would mean the end of the rule of law, plain and simple.

[00:04:51]Do you think that there are certain Are there certain parameters to criticizing the court, or is that unacceptable beyond the first amendment?

[00:05:02]I think it's perfectly acceptable to criticize the Supreme Court. People always have. Presidents from the beginning of our country have lost major cases before the Supreme Court.

[00:05:12]President Jefferson frequently criticized decisions from the Supreme Court. Um I think there's a line between criticizing decisions, criticizing their reasoning, and attacking the legitimacy and the independence of the Supreme Court itself.

[00:05:26]Very good. I yield back. The gentleman yields back.