The Judiciary Act of 1789 created the Court with 6 judges, but in 1807 Congress increased it to 7. (Odd numbers work better in ties). Then in 1837, the number was bumped up to 9, then 10 in 1863. Then in 1866 they went back to 7... until 1869 when it went back to 9, and stuck. With about 10,000 annual requests to review cases, they hear about 80 cases per year. Since these are all appeals from lower federal court, there's no real witnesses or trial, it is all legal review. Both sides submit written legal arguments (briefs) in advance, and justices usually listen to verbal (Oral) arguments from both sides, which justices asking questions. Then they go to closed room and debate how the decision will go, then write up their opinions (all with the help of their clerks).
Many people don't know it, but while Supreme Court Justices are appointed for life (or retirement), they can be impeached -- and Samuel Chase was impeached by Congress (the House) in 1804 for being an obvious partisan Democrat. But since the Democrats controlled the Senate, they acquitted him in 1805, showing their contempt for the rule of law... and he remained on the bench until his death in 1811.
The Federalists were the elitist, Pro-Administration (John Adams and Alexander Hamilton) and pro-authoritan party, who wanted national banks, national over state government, manufacturing over farming/agrarian, pro Britain and opposed the French Revolution. While the Jefferson's Republican Party (or sometimes Democratic-Republicans) was James Madison, Thomas Jefferson and other individualists, who were anti-authoritarian, anti-federalists, they wanted stronger states and weaker federal, was more sympathetic to farmers, and was not as loyal to Britain, and supported individualism over aristocracy and thus was more neutral or positive on the French Revolution.Since modern Republicans seem to love Jefferson, and modern Democrats dislike his individualism and were more Federalists, and both fit their ideologies respectively I categorize them by logical alignment. And so while the parties shifted a few more times before Andrew Jackson and Lincoln cemented the parties we have today, I still think of the Federalists as the Democrats, and Jefferson as the Libertarians/Republicans).
Try and stop me
One of the problems with the Supreme Court is that we really don't know what to do when Presidents ignore it. And that's been done a few times:
- In 1828, the first Democrat President was Andrew Jackson, and he almost immediately signed the Indian Removal Act into law, which basically said all Native American tribes living east of the Mississippi were rounded up and marched to camps farther west. The US Supreme court ruled in favor of Cherokee Indians in a suit against Georgia (Cherokee Nation v. Georgia) and said the Cherokee Nation could not be forcibly removed from their homes. So Andrew Jackson was the first President to completely ignore the Constitution, Oath of Office, and rule-of-law, and just ignored the decision. (Very much like Democrats to this day). And the Cherokee people were rounded up at gunpoint and forced to Oklahoma: one in four Cherokee people died during the inhumane journey which became known as the Trail of Tears. Some ignorant people call the Trail of Tears an Indian genocide. But a genocide comes from Greek geno- (γένος), meaning 'race' or 'people'.. and Latin caedere, the word for "to kill". So Genocide is intentional, systematic killings to destroy a race, nation or people. While many Native Americans were exploited or killed through callous disregard and irresponsible relocations, there was no systemic effort to intentionally kill wipe them out. The intent was to relocate them away. So while this was an atrocity, it was more like the Bataan Death March, than the Nazi final solution, Pol Pot, Casto, Mao, or Turkish-Armenian genocides.If Democrats had values, that would have been the last Democrat elected President, instead of just the first, but the party lived on, because Democrats were literally founded on not learning from their mistakes or holding Democrats accountable for bad behavior.
- Abraham Lincoln -
- In 1937, in an effort to create a court more friendly to his New Deal programs, President Franklin Roosevelt attempted to convince Congress to pass legislation that would allow a new justice to be added to the court—for a total of up to 15 members—for every justice over 70 who opted not to retire. Congress didn’t go for FDR’s plan.
One of the stupidest things the Progressives have ever done (and they've done a lot), is around the turn of the 19th century, Harvard and other progressives tried to re-invent Contract Law and the Constitution as a "Living Document". This is another way of saying that, "A legal documents words have no fixed meaning, and can be altered without the consent of either party, in order to meet the political whims of subsequent generations". In other words, a contract means nothing, the only thing that matters is the opinions of 9 oligarchs residing in the top court. Thats' fine if you're one of the judges, but it makes America a Democracy where only 9 people's opinions matter.
Politicizing the Court
We can argue that the Supreme Court has always been politicized -- since 1804 when Chase was impeached for being too partisan. But you can also argue that since the Senate acquitted him, that it's always had certain independence and autonomy, no matter how bad the Justices are. But historically, it helps to remember that it's virtually ALWAYS been the Progressives/Democrats that politicize the court.
The conservatives, independents and traditionalists (and most of the Founders) saw the court as a boring and not very important branch of the government. Their job was just to interpret the laws as written, and deal with subtle nuances around the edges. Not to be some group of oligarchs, that would go to creative writing classes to invent in powers and intent that was never in the original text, for the purpose of furthering an agenda.
The progressives/left re-imagined the court (starting around the turn of the 20th century), that if they couldn't pass laws through the legislature (or they passed illegal / extraconstitutional laws through the legislature) that they could corrupt the court into being a gang of oligarchs that would push through (or defend) their activist agendas. This starts with imagining that a dead piece a wood pulp (contract) written 200 years earlier, is some "living" thing, that could be altered over time. And that precedent was more important than intent. A truly disgusting thought if you imagine what that means. You could sign a contract with someone that expressly said X, and a judge could say, "well it should have said Y, so you're guilty of failure to comply with something that I think it should have said". Where's the rights or justice in that?
Basically, the far-left's delusion is of the court being co-legislators, that could pervert the original intent of the law, one small incremental step at a time (one precedent builds on the others), until it no longer resembles what it was intended to do. And they are outraged when this imagined power has checks put on it, and you reverse a prior activists courts fevered imagination. The Constitution (and Bill of Rights) was written for the express purpose of disallowing (or making it very hard) to get scope/feature creep on our laws -- without the express consent of the governed. E.g. The legislature was beholden to the people: the Court was only supposed to be beholden to the laws original intent. So an argument that the Constitution should have allowed more flexibility in laws, or made the Supremes more powerful is fine. Wrong, but fine. But their argument that it did do that, is just a fucking lie to further their agenda, and should be treated as anti-American contempt of the Constitution. No one has ever been able to point to anything that supported this argument.
So the spectrum on the court isn't right <-> left, it is constitutionalist (originalist, textualist) <-> activist. And while there's certainly been a few cases where the right side of the court let their political bias seep into a ruling or two (and shift them towards activism), they are as rare as it is common that the left side of the court is guided by their politics/desires and agendas and will put those things above their duty and the law. Thus there is no far-right Judges on the court right now: none on the right have been consistently trying to re-imagine the Constitution to fit their political biases (as near as I can tell). But that also means there's no real moderate-left Judges on the court. Some will occasionally respect the rule of law, and sometimes they will ignore it -- or in the case of RBG and Sotomayor, there are at least 2 that will always put their agendas above the rule of law.
If you were to order the current justices from most Constitutionalist (Conservative) to least (most Progressive/Political), the order would be Thomas, Gorsuch, Alito, Roberts, Kennedy, Breyer, Kegan, Sotomayor, RBG (Ruth Bader Ginsberg)... with Kennedy, Roberts and Breyer occasionally jumping to the other side on a few issues. While the Democrats (Breyer, Kegan, Sotomayor, RBG) tend to vote in a block on left-leaning cases.
Judicial Activism generally means legislating from the bench: inventing law, instead of just interpreting it... or coloring it based on what you think the law should have said, instead of what it actually said. This started with a turn of the 19th century invention by progressives (and the Harvard Law Review) that the Constitution should be imagined as a "living document", that can be changed over time -- and that precedent is more important than original intent. So you can "interpret" something to mean what you think it should have meant, then use that in the future.... which means your starting point in the future is not the original intent, but the revised intent (interpretation) invented by other judges, and you go from there, until the final interpretation of the law, looks nothing like the original.
This precedence above prudence and original intent empowers Judges to become oligarchs, twisting the law to fit their morals, and enforcing it on everyone else. (A progressive's wet dream). So while the right is occasionally activist (or at least makes poor or politically motivated decisions that deviate from actual law), this is the whole reason for being for Progressives. Their purpose in life is to push their ideas for progress, no matter what the law says. And so while there are valid complaints against all the Judges for not being legally consistent, no one can re-imagine what they think the law should have said like Progressives.
If there's an obviously wrong side (from an original intent PoV), you stand better than average odds that Sotomayor and RBG are going to be on it. Putting their personal agendas above the actual law, national interest, or consequences.