The only thing fixed in stone — or the Constitution — about the Supreme Court is that it exists. Nothing about its size, and, famously, nothing about its authority.
Judicial review of laws? Marbury v. Madison, 1803. But you knew that.
Unanimous decision, as it happens. 4-0.
The original court — as created by Congress and approved by the President — consisted of six justices, five associates and a chief. (Nothing Constitutionally mandated about the hierarchy, either, although the “Chief Justice” presides over impeachment.) That number was reduced to five in 1801 — lame-duck move by Adams — then back to six — fuck-you from Jefferson — a year later.
Why only four votes on Marbury? Two justices were out sick for what would be — and accepted as — the most consequential decision in American history.
The judiciary wasn’t granted this authority. They claimed it. Which is why, centuries later, we’re sweating an untimely death in the ranks, and debating what to do about it.
Because we can.
This isn’t like other problems with the structural tyranny of representation in the United States government — the Senate and the Electoral College — where redressing flaws would require the acquiescence of folks who benefit from them. This one’s straight-up Schoolhouse Rock: Pass a bill on Capitol Hill, send it up Penn Ave for signing. Dun & Dun.
This was attempted within living memory, one of the other bullet points in your civics textbook: FDR’s “court-packing” scheme of 1937, which would have offset justices unfriendly to the New Deal with six new members.
Didn’t fly, but procedurally, it had an interesting twist: Not six new members as such, but one new member for every justice who didn’t retire after age 70 and six months.
Today that would be Thomas, Breyer, and (in ten days) Alito.
But nine is what we have now, expanded to seven in 1807, and reached in 1837.
Oh, wait: Lincoln, the first Republican President, got himself a tenth. Congress moved to shrink the court to seven by attrition under Andrew Johnson, then restored it to nine under Grant.
In 1869. In a 37-state America, population 38 million. Not saying there should be a relationship there, just noting that one justice now represents almost ten times as many citizens.
What we are saying is that there’s nothing constitutionally sacred about the Supreme Court except its mere existence, and nothing sacred about its membership except that justices serve for “good Behavior”. Beyond that, a willing Congress and President are free to do whatever the fuck they want. As they have. Repeatedly.
Back and forth, even, all the way back to the Adams-Jefferson pissing match.
We only fear an untimely vacancy because we feel there’s nothing that can be done, that we may be stuck with another rapist deciding our laws for decades. And should we do something that’s entirely within our power to do, we fear an endless tit-for-tat in consequence.
But, y’know, tit-for-tat is part of how shit works around here, why, as they like to say, elections have consequences, why — for example — Obamacare repeal was a very real fear, and came within a vote of succeeding.
The size of the Supreme Court is a legislative issue, just as its membership is. And if we’re going to let the court have the authority over our lives that it has claimed for itself, we should exercise our full power to determine its composition.
Some tyranny we’re stuck with, short of a revolution. But not this one.