In 1863, as the Civil War raged and its result was not yet certain, Congress for the first time raised the number of justices on the Supreme Court to 10. The Tenth Circuit Act was approved on March 3, 1863. This was done in large part to allow Abraham Lincoln to nominate a strong Unionist justice to the Court, Stephen J. Field, on March 6, 1863. Field was confirmed on March 10, after Congress created a new Supreme Court seat.
Three years later, after the Union’s triumph in the war, the assassination of President Abraham Lincoln and the beginning of a long, drawn-out era of Reconstruction, Congress passed a bill on July 23, 1866, that reduced the number of justices to seven through attrition and barred the filling of vacancies until that number was reached. This was done to prevent President Andrew Johnson from making any nominations to fill Supreme Court vacancies.
Just prior to this statute’s passage, Congress had passed the Fourteenth Amendment on June 13, 1866, and formally transmitted it to the states for ratification on June 16, 1866. Ratification was not certain, nor was the defeat of Johnson in 1868. While the proposed Fourteenth Amendment was silent on the number of justices on the Supreme Court, the amendment explicitly guaranteed the citizens of the United States the right to “due process of law,” along with unenumerated privileges or immunities and the equal protection of the laws. The language of the amendment’s first section concludes: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
REPUBLICANS FAIL TO EASE ONE OF TRUMP’S GREATEST FEARS AS SUPREME COURT MEASURE COLLAPSES
The original Constitution had been silent as to the number of justices on the Supreme Court, but from 1866 to 1869, a combination of three statutes and one amendment put a constitutional imprimatur on the number of nine. The Fourteenth Amendment was ratified on July 9, 1868, by the necessary number of states, and Secretary of State William Seward formally proclaimed the Fourteenth Amendment as part of the Constitution on July 28, 1868.
On March 2, 1867, while the new amendment was pending ratification or rejection, Congress passed a Reconstruction Act that obliged any state in the defeated Confederacy to ratify the Fourteenth Amendment before that state’s representatives could be admitted to Congress.
Less than a year after ratification and certification of the Fourteenth Amendment, Congress completed the work of the Reconstruction Era with regard to the Supreme Court with the passage of the Judiciary Act of 1869.
That act first passed in March 1869, but outgoing President Johnson pocket-vetoed the bill. Congress promptly passed it again, and the new President, Ulysses S. Grant, promptly signed it. That law completed the work of the Fourteenth Amendment and fixed the Supreme Court at nine members, where it has remained for 157 years.
There is an excellent argument that this sequence of events over three post-war years—a proposed amendment passing Congress, then a statute tying the hands of Johnson, then a statute requiring ratification as a precondition of admission to the Union, followed by ratification of the amendment and then the final statute on the makeup of the Supreme Court—embedded the number of nine justices implicitly in the notion of the “due process” of law language of the Fourteenth Amendment, and that this reading was confirmed by the rapid move to make that number nine explicit after ratification of the Fourteenth Amendment.
Certainly, the refusal of overwhelming Democratic majorities in Congress in 1937 and 1938 to endorse President Franklin Roosevelt’s attempt to “pack the Court” fortifies the view that the Supreme Court’s number of nine justices is very much part of the “due process” of law in the United States and cannot be changed from nine except by a constitutional amendment.
DEMOCRATIC SENATOR CLAIMS GOP ‘STOLE’ TWO SCOTUS SEATS IN 2016, 2020, CALLS FOR EXPANSION
Last week, the House GOP majority put forward a constitutional amendment (H.J. Res. 8) to explicitly fix the Supreme Court at nine members. The proposal failed to reach the required two-thirds majority in a 212–206 vote. House Republicans voted overwhelmingly in favor, while Democrats voted 1–205 against it, with Rep. Don Davis, D-N.C., as the lone Democrat supporting the measure. Independent Rep. Kevin Kiley, who caucuses with Republicans, voted against it, while 15 members did not vote.
Democrats fear they cannot win and hold the presidency long enough to allow for the nomination and confirmation of enough new justices for the gradual evolution of American constitutional law to reflect their distinctly minority views on what the Constitution requires on a score of issues.
Achieving a significant course change in American constitutional law requires enormous patience and wisdom over the decades it takes to see vacancies arise and new justices confirmed. “Originalists”—known in a previous era as “strict constructionists” and more commonly as “old-fashioned judges”—were shocked by the 1973 radical decision in Roe v. Wade, to cite just one example, but they were obliged to wait nearly a half-century until the Dobbs decision in 2022 to see the disfiguring jurisprudence hatched by Roe repudiated.
The terrible decision in the 1978 case Regents of the University of California v. Bakke launched affirmative action in admissions at colleges and universities, an unconstitutional experiment that did not meet its long-overdue demise until the 2023 decisions in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina.
When the Court heads down the wrong path, it can take decades to course-correct back to the Constitution’s design.
And the waiting can be extremely frustrating.
After President Reagan and President George H.W. Bush made a combined three appointments to the Court, originalists expected the repudiation of Roe in 1992 in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey, but the three Supreme Triumvirs of the time—Justices Anthony Kennedy, Sandra Day O’Connor and David Souter—conjured up a replacement theory, gutted Roe and replaced it with a wholly new and novel theory of abortion “rights” without explicitly overturning Roe. Three more decades of bad law followed until Dobbs returned the regulation of abortion to the states, where it has been the subject of ongoing debate, legislation and referenda. Abortion remains widely available in the United States today, though not everywhere or on demand in most states. That’s federalism at work, and it does indeed work.
Those who longed for a return of the Court to its pre-Roe humility concerning its own role on every controversial issue did not, however, think of “packing the Court” as a means to their ends, as that is a step that is not just too radical and unthinkable—it is also unconstitutional.
This past “summer of the DSA” and the rise of far-left Twitch streamer Hasan Piker have communicated to even long-serving Democratic members of the House of Representatives that its activist base is gripped by a fever of anti-American rage unseen in that party since secession gripped the Democrats in December 1860. Like the pro-slavery Democrats of antebellum America, the Democrats of today would rather wreck the Constitution than abide by it.
The proposal to change all the laws of the United States by suddenly injecting hard-left judicial “philosophy” into a supermajority of new justices to the left of Justice Ketanji Brown Jackson ought to scare every American who believes in the rule of law. Every established precedent in every area of law would be out the door if that change ever occurs. Eight individuals—five new radical justices plus Justices Brown Jackson, Sonia Sotomayor and Kagan—would effectively and immediately rule the United States. The left’s longed-for “revolution” would arrive.
Suddenly. Irreversibly. And that is what the DSA left and the Democratic Party it has cowed demands.
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A statute approving the expansion of the Court is unconstitutional. It violates the guarantee of due process of law in the Fourteenth Amendment, substituting in its place an endless roller coaster of judicial revolution and counter-revolution via an accordion Supreme Court that just expands and never contracts. There is no end in sight on this road to the radicals’ ruin of the rule of law.
The House GOP would perhaps have been better served by forcing a vote on the constitutionality of such a statute. Over the past weekend, the Manhattan Institute’s James Piereson took to the Wall Street Journal to argue in an op-ed that “there are good reasons to think such a law would be unconstitutional, in that it would undermine the separation of powers and the independence of the judiciary.”
Piereson is right that the “history of court expansion in the 19th century provides no support for the Democrats’ plan, nor does the language of the founders in their commentary on the Constitution or FDR’s ill-fated experiment with court packing.” He could have gone further, and others will, to explain how the “due process” guaranteed every American by the Fourteenth Amendment is incompatible with expansion of the Court beyond nine, as provided for in the post-14th Amendment Judiciary Act of 1869.
Democrats cannot use transient majorities and rule changes in the Senate to gain the authority to undo the Constitution remade anew in 1868. Americans love their country and their freedoms. They do not want the radical makeover proposed by the DSA and now acquiesced in by the 2026 Democrats.
Republicans put the issue front and center last week. It should remain there throughout the fall and all of the 2028 campaign. The DSA Democrats “hate” the Constitution. The GOP is right to defend it.
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Hugh Hewitt is a Fox News contributor and host of “The Hugh Hewitt Show” heard weekday afternoons from 3 PM to 6 PM ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh drives Americans home on the East Coast and to lunch on the West Coast on over 400 affiliates nationwide, and on all the streaming platforms where SNC can be seen. He is a frequent guest on the Fox News Channel’s news roundtable, hosted by Bret Baier weekdays at 6pm ET. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt has been a Professor of Law at Chapman University’s Fowler School of Law since 1996 where he teaches Constitutional Law. Hewitt launched his eponymous radio show from Los Angeles in 1990. Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, has authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-16 cycle. Hewitt focuses his radio show and his column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his 40 years in broadcasting. This column previews the lead story that will drive his radio/ TV show today.
