February 22, 2022: Non-Favorite Myths: The Supreme Court

[For this year’s post-Valentine’s non-favorites series, I wanted to continue exploding some foundational American myths. Leading up to my favorite crowd-sourced post of the year, so please share your own non-favorites—in every category—for that collective airing of grievances!]

On two myths about the nation’s highest court, and why they might need to be challenged together.

For the first of the two Supreme Court myths I want to bust in this post, I’d ask you to check out this 2016 HuffPost column of mine on why the idea that the Court was initially or ever apolitical is entirely inaccurate. See you back here in a few, and thanks!

Welcome back! So yes, the Supreme Court is the nation’s highest legal authority, but it’s also part of our political and governmental systems and processes, and always has been. Another and even more blatantly inaccurate myth is that the Court’s current size is either foundational or Constitutional. In fact, the Constitution doesn’t define the number of Justices, and as I described in that HuffPost column, there were initially six Justices. The number would change six total times over the next century, reaching a high of ten Justices in 1863, before settling at its current total of nine in 1869—and that particular moment was especially political and fraught, as the Judicial Circuits Act of 1866 (passed by Congress in attempt to limit President Andrew Johnson’s power) led to the shrinking of the Court from ten to seven Justices (when three retirees were not replaced) before the Judiciary Act of 1869 allowed President Ulysses S. Grant to immediately add two Justices and return the number to nine. The fact that it has remained at nine for the 150 years since doesn’t change the more foundational fact that the Court’s composition is flexible and has changed with political trends and influences.

I suspect you know where I’m going with this, and I don’t need to dwell on it at length. None of those histories mean that we necessarily should expand the Court here in early 2022—but they certainly do mean that any argument against expansion based on either of these myths (ie, “We shouldn’t embroil the Court in current politics”; “We can’t mess with something as foundational as the size of the Supreme Court”) is a non-starter from the jump. And I would add this: there’s been a lot of understandable conversation in the last year about how much our own moment seems linked to Reconstruction. I agree, and would add that it’s far from coincidental that that was the last time when the Court’s size changed. To my mind, it’s long past time we made such changes once more, which will require challenging a couple significant myths along the way.

Next non-favorite myth tomorrow,

Ben

PS. What do you think? Other non-favorites, myths and everything else, you’d share?