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One century and six days before FDR revealed the details of his Court-packing plan to the American public, Congress passed a law creating two new Supreme Court associate justiceships, thereby increasing the Court’s membership from seven to nine. Here’s the first page of S. 17, the Senate bill that became the Judiciary Act of 1837:


The Act was passed on March 3, 1837, President Jackson’s last full day in office. He sent the names of John Catron (a former Chief Justice of the Tennessee Supreme Court) and William Smith (a former U.S. Senator from South Carolina) to the Senate that same day, and both were confirmed on March 8. Smith declined the nomination—probably for the best, as he died three years later at the age of 77 or 78. With the Senate’s Special Session lasting only from March 4 to March 10, President Van Buren gave Alabama Senator John McKinley a recess appointment to the Court on April 22. He was formally nominated on September 18 and confirmed one week later.

The 1837 Act obviously enabled Jackson/Van Buren to “pack” the Court with politically amenable lawyers, but the bill may have been driven more by sectional than partisan concerns. Justices then doubled as circuit court judges when the Supreme Court wasn’t in session. Nine new states had been admitted to the Union since 1807, when the last reorganization of the circuit system occurred. In instances where the Supreme Court even had appellate jurisdiction, losing litigants in these states effectively had to appeal cases originally argued in federal district courts directly to the top tribunal (Congress had permitted district judges in circuitless states to exercise circuit-court jurisdiction, too, but that didn’t help the losers any). The right to appeal was thus often conditioned on the ability to meet insurmountable expenses.  And since Supreme Court justices were chosen largely on the basis of circuit residency (an unwritten one-circuit, one-justice norm prevailed), Westerners were arguably deprived of a voice in the resolution of high judicial matters that deeply affected them and in which their lawyers alone might claim a special expertise.

I’m mildly skeptical that the president would have nominated (and the Senate would have confirmed) a man in his mid-70s if this were all about prolonging the Jacksonian legacy. Stephen Engel also writes that the Court-packing interpretation “downplays the reality that congressional debate on judicial reform had taken place each year since 1815, that Presidents Madison, Monroe, Quincy Adams, and Jackson each called for reform, and that expansion of the Supreme bench was not the only reform considered.” But on the second piece of evidence, what president wouldn’t call for reform if it meant SCOTUS expansion on his terms? We should also keep in mind that one possible reform would have entailed abolishing circuit-riding, creating a new category of federal circuit judgeships, and restructuring the circuit system, which would have amounted to zero new Supreme Court appointments for the incumbent president. So I don’t think the Court-packing-as-motive interpretation can be entirely discounted, as other, less self-empowering alternatives were available to accommodate the legal needs of Western Democrats and their constituents.

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