The Naked Question of the Constitutionality of the Court Proposal

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The Naked Question of the Constitutionality of the Court Proposal

John H. Clarke
Former Associate Justice, U. S. Supreme Court
Over NBC, March 22, 1937

Publishing Information

For a month I have steadfastly refused many requests for a public expression of my views on the President's program for judiciary reform. This for the reason that the obvious proprieties forbid that one who has served six years as a member of the Supreme Court should publicly criticize either the contemporary decisions of that court or the political principles or policies of the President of the United States.
However, it has become so widely asserted that the President's proposal with respect to the Supreme Court is unconstitutional that I have concluded it to be not improper, but my duty as a citizen, to publicly state my views as to this purely legal question, the decision of which may be so fateful to our country.
The case that is clearly stated is more than half argued, and therefore be it known that I yield to no man in my confidence in and estimate of the great value of the Supreme Court as a department of our government and that in what I have to say I shall not criticize in any manner either any of its recent decisions, or the proposals of the President, but shall confine myself to the naked legal question, "would a conditional increase of the number of judges of the Supreme Court by act of Congress, as recommended by the President, be constitutional or not?" that is the question.
No rule of law is better established than that great weight must always be given by the courts to early, contemporaneous construction of the Constitution by the legislative or executive departments of the government, especially when such construction has been repeated, acted upon and long accepted by the country. Let us apply this rule to the history of the action of Congress and of many Presidents with respect to our subject.
The government under the Constitution was organized in April, 1789, and five months later, in September, by act of Congress approved by President Washington, provision was made for the organization of the Supreme Court, and the number of judges was fixed at six. This action of Congress was accepted by the country as obviously constitutional, the judges were appointed by President Washington and proceeded to act under it.
The number of judges remained at six for eleven years, until in 1801, when Congress reduced the number to five by an act approved by John Adams, our second President. The number of five judges continued for only one year when, by act of Congress approved by President Jefferson, our third President, the number of judges was restored to the original six.
With this number of six judges the court continued for five years, when again by act of Congress, also approved by Jefferson, the number was increased to seven. With this number of seven judges the court continued in the discharge of its high duties for thirty years, when the growth of the country and of the business of the court led Congress to add two more associate judges in an act approved by President Andrew Jackson, thus, with the Chief Justice, making the number nine. With this number the court continued for twenty-six years, until in 1863, when the number was increased from nine to ten by act of Congress approved by President Lincoln.
This fifth change to ten continued for only three years, when in 1866, shortly after the death of President Lincoln, again by act of Congress it was provided, "that no vacancy in the office of associate justice of the Supreme Court shall be filled by appointment until the number of associate justices shall be reduced to six," making seven with the Chief Justice.
This potential reduction of the total number of judges from ten to seven also lasted only three years, when, General Grant being elected President, by act of Congress approved by him in 1869, the number of associate justices was restored to nine, at which number it has continued to our day.
Thus in eighty years of our history, the number of judges of the Supreme Court was first determined by act of Congress, twice the number has been reduced and five times it has been increased, always by act of Congress and never before has the power of Congress under the Constitution to thus legislate been questioned, certainly not in the courts.
It is confidently believed that few, if any, other important powers of Congress have been so early and so often exercised with the entire approval of our country, our Presidents and our courts, as this of determining the number of judges of the Supreme Court.
This history alone, were there no other reason, would warrant the courts, indeed would compel any court to approve as constitutional such exercise of power by Congress as the President proposes.
Consider now for a moment the specific provisions of the Constitution on which this long line of congressional and executive action which we have recalled has been based. The are only two, and they are very short.
First. The Constitution declares "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."
Second. After providing a very limited original jurisdiction for the Supreme Court the Constitution declares, "in all other cases before mentioned the Supreme Court shall have appellate jurisdiction—with such exceptions and under such regulations as the Congress shall make," and that is all.
While the Constitution thus declared we shall have a Supreme Court no provision whatever was made for its organization, and it was at once apparent that the only department of government which could provide for such organization was the Congress, and accordingly the long course of Congressional action with regard to the membership of the court, which we have just recalled, was promptly entered upon, was accepted, and by acting under it approved, by the court and the country.
But, in addition to this, in the provisions of the Constitution quoted, the Congress also found obvious warrant for regulating in all respects the appellate jurisdiction of the court, and this power of Congress over the Supreme Court has also been frequently exercised—always with the approval of all three branches of the government.
No amount of argument could make this grant of power we are considering clearer than these plain provisions of the Constitution make it—to argue the question further would obscure it.
The wise men who framed our Constitution may have had more confidence in the wisdom and patriotism of the Congresses and the Presidents which were to come after them, and less confidence in courts than some seem to have today.
Whether or not they were wise in entrusting to the Congress and to the President such extensive powers over the courts as we have found they possess and have long exercised is not now before us. The single question I am considering is, would a conditional increase of the number of judges of the Supreme Court by act of Congress, as recommended by the President, be constitutional or not—and for the reasons thus briefly stated I think that the answer to that question should be—must be—that such an act would plainly be within the powers granted to the Congress and therefore clearly constitutional.