Vail Law: ‘Stacking’ federal courts is often-discussed, but not often done (column)

By Rohn Robbins There is something in the air.
Insurrection, maybe? Or perhaps just the “encampment” of our fractured era.
Several times recently, someone has asked me, “What if the Dems who now control the House wanted to expand the number of justices on the Supreme Court?” Or words to that effect.
Besides a “Huh?” there is a fatal flaw to the logic. Or perhaps two. First, if there were a “vacancy” on the Supreme Court, the president would fill it. And — for the moment anyway — the president is not a Democrat. Second, it is the Senate, not the House, that, pursuant to Article II, Section 2, of the U.S. Constitution, is the body that offers “advice and consent” to presidential appointments. And the Senate remains in Republican hands.
Those inconveniences aside, could it heave the other way? Could, say, the president determine to enlarge the Supreme Court by a justice of two, thereby ensuring a long legacy of justices with conservative bent?
Most folks are surprised to learn that the number of justices — nine — is more a matter of tradition than Constitutional imperative. In fact, rather than dictating how many justices there may be, the Constitution allows for Congress to decide how many justices may sit on the Supreme Court’s bench. Article III, Section 1, yields broad discretion to the Congress, holding that, “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.”

Starting with six
The Judiciary Act of 1789 established the first Supreme Court, with six justices. “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Supreme Court of the United States shall consist of a chief justice and five associate justices, … and shall hold annually at the seat of government two sessions, the one commencing the first Monday of February, and the other the first Monday of August.”
Our first Chief Justice, John Jay, steered the early court but most legal scholars credit John Marshall as the Chief Justice (our fourth Chief Justice) who established what the court should be and what the Constitution really meant. Marshall served as Chief Justice from 1801-1839. As a bit of little-known trivia, the Liberty Bell cracked shortly after its arrival in Pennsylvania from England in 1752. It was, however, recast from the same metal by local tradesmen in 1753. The original inscription, “Proclaim Liberty throughout all the land unto all the inhabitants thereof” was inscribed into the bell. Oops, the “new” bell also proved defective.
A third bell was cast.
The “new, new” bell was hung in the tower of Independence Hall on June 7, 1753. During the American Revolution, in 1777, it was taken out of the tower for safe keeping when the British troops captured Philadelphia and was returned to Independence Hall in 1778.
The bell was proudly rung each year on the anniversary of American Independence until 1835. On July …read more

Via:: Vail Daily