Rachel Shelden: It cannot be stressed enough that adjusting the size of the Supreme Court in the 19th c. was a serious solution to serious concerns about how the Court functioned. As @earlymodjustice.bsky.social points out, reform often addressed imbalances. And these imbalances were often about REPRESENTATION. 1/

It cannot be stressed enough that adjusting the size of the Supreme Court in the 19th c. was a serious solution to serious concerns about how the Court functioned. As @earlymodjustice.bsky.social points out, reform often addressed imbalances. And these imbalances were often about REPRESENTATION. 1/

Seven times between 1801 and 1869 Congress changed the size of the court, going from a low of five justices in 1801 to a high of ten in 1863. In most of those cases, as in 1801 and 1863, the size went up and down in order to fix an imbalance or overreach by the Supreme Court. My latest

The Case for Expanding the Supreme Court Has Never Been Strongernewrepublic.com Biden has repeatedly refused to endorse “court-packing.” The right-wing justices’ ruling on presidential immunity ought to change his mind.

In the 19th century, justices "rode circuit"--they were not only members of the SCOTUS but also served as judges on intermediary courts (there were no separate circuit judges!). There they were *representatives* of the circuit in question. Justices were selected FROM & based on their circuit. 2/

When a vacancy occurred on the Court, it was filled by a resident of the corresponding circuit. Westerners especially clamored for more representation & Congress adjusted the circuits out of such concerns. Reform calls were framed as necessary to correct injustices by an unrepresentative Court. 3/

19th c Americans did not believe these demands threatened the "independence" or "impartiality" of SCOTUS; quite the opposite! They didn't expect justices to simply vote for regional demands but they did fear an elite court separated from the people. Circuit riding & balance prevented that outcome 4/

Today's Supreme Court has built its enormous power, in part, on the idea that it is more independent & impartial than the political branches because it does not answer to public opinion. But that view would have shocked 19th c Americans (most of whom already feared such a strong judiciary). 5/

Whether you like the proposed 12 associate justice bill or not, its focus on circuits is at least a tentative call back to the role of judicial representation in early America. /fin

But there are 13 circuits. I would definitely support a proposal that each of the 13 justices should be picked from a different circuit; it would certainly help to diversify the SCOTUS discretionary docket and fulfill the original intent you discuss above.

How do you craft a historical argument for court expansion when so much of mainstream punditry is spooked by the example of FDR’s court packing plan & views the plan as a cautionary tale?

The question is important! Because it exposes how expansion divorced from its context is not very helpful. IMHO, adding seats is useful only if coupled with a push for other reforms & a broader conversation about the Court's power and role in American politics--historically & today.

Here’s my effort. Key claim is that Court packing (like most examples of constitutional hardball) can be deployed in ways that either strengthen or undermine democracy, depending on context papers.ssrn.com/sol3/papers....

Court-Packing and Democratic Erosionpapers.ssrn.com When faced with an incumbent party that is deliberately tilting the electoral and institutional playing field, under what conditions should small-d democracy ad

This sounds like of much interest to @jbouie.bsky.social though imagining he is familiar with this history

I’ve always thought the number of justices should be tied to the number of circuits. One justice per circuit. If there are an odd number of numbered circuits the CJ takes one plus DC, if the number is even the CJ takes the DC circuit only. Add in pairs.

I think we should provide good horses for the men on the Supreme court so they do can ride circuit, actually earn their pay...

Yeah Lincoln's famous rebuke of Taney was not actually a rebuke of SCOTUS, even though he was CJ. At the time he ruled on Ex parte Merryman while riding the Maryland circuit

When SCOTUS overturned Chevron deference the Court made themselves the final arbiter of administrative law going forward. They’ve made an enormous amount of work for themselves. We need to impanel 2 more courts of 9 jurists each for a total of 27 Justices just to handle the new case load. (lulz)

The lack of outrage from the dems in Congress is political malpractice. That they are so afraid of appearing partisan, is proof that the GOP working the refs for decades has worked. Dems have been bopped on the nose so many times they've been tamed. The next 4 months should be wall to wall SCOTUS.

They’re low key enablers at this point. I’d almost call them controlled opposition but I don’t think they’re smart enough to profit off of that either

Weird how the court stopped changing after Reconstruction failed. I'm sure it's a coincidence. /s

A movement to reaffirm the 14th Amendment in front of the Court would be especially satisfying. Either a pro or anti ruling would be extremely helpful and telling

They're supposed to treat it as the ultimate law of the land but they do not. I'd expect the six to just say "sure, no problem" and then continue to ignore it.

I assume you would prove right but public noise is the only thing that gets through to those hacks

also see @kevinmkruse.bsky.social on FDR's 1937 proposal kevinmkruse.substack.com/p/unpacking-...

Unpacking the Courtkevinmkruse.substack.com In recent months, the breathtaking radicalism and brazen corruption of the current Supreme Court has reignited the longstanding debate over reforming the Court by expanding the number of Justices. As ...

Something the biden administration has really fallen down on IMO.

The Jefferson and Civil War/Reconstruction era changes were also explicitly about stopping/preventing partisan coalitions from using the Court to undermine democracy

That is for sure the standard narrative, though I have a slightly different view primarily b/c I think the partisan emphasis is not quite right. Much of the scholarly literature exploring those changes relies on a party system framework for the 19th c that I have argued elsewhere did not exist.

This is something Biden could support that would be popular.

I'd rather have a Democratic landslide and impeach Thomas and Alito. They put the 'grift' in grifters.

Post