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Moreover, although there is congestion in the lower courts—the southern district of New York, for example, is some 18 months behind in its work both in law and equity cases—the Supreme Court for several years has had only about 100 cases left on its calendar at the end of each term. And most qualified opinion agrees that enlarging the Supreme Court would brake rather than accelerate it. The late Justice Story remarked: "If there were twelve Justices we should do no business at all." Franklin Roosevelt's great friend Felix Frankfurter says in the Encyclopedia of Social Sciences, "There is no magic in the number nine, but there are limits to effective judicial action. . . . Experience is conclusive that to enlarge the size of the Supreme Court would be self-defeating."
Of the 25 judges aged 70 or more whom the President might duplicate with younger men, there are, after deducting six in the Supreme Court, only 19 in the more crowded lower courts. If a shortage of judicial manpower weighed on the President's mind, it was strange that he had not filled the eight vacancies in the lower courts, which have existed from several months to over a year.
Historic Football. Three decades of comparative calm have surrounded the Supreme Court with an air of ancient virginity which last week made its proposed alteration seem violent indeed. But when loyal Majority Leader Robinson of the Senate called his chief's plan "in no sense a violent innovation," he spoke truly in history's light. In the great game of power between sections, classes, parties and individuals which is U. S. history, the Court has .more than once been a political football, and Franklin Roosevelt is by no means the first politician or President to give it a boot.
The first Court squeeze-play was worked by Federalists, spiritual forebears of present-day Republicans. Having lost the executive and legislative branches of the Government to Jefferson and his Demo-crats (then called Republicans) in the elections of 1800-01, Second President John Adams and his lame-duck Congress whipped through a "midnight judges act" designed to keep their party in control of the judicial branch for many a year to come. In addition to creating 16 new life-term circuit judgeships, which President-reject Adams did not finish filling with Federalists until midnight of March 3, the Act forestalled a Jeffersonian appointment to the Supreme Court by reducing its membership from six to five. President-elect Jefferson was also thwarted when Adams secured the resignation of ailing Chief Justice Oliver Ellsworth and rushed in his Secretary of State, John Marshall. The new Jeffersonian Congress promptly repealed the Federalist act, pushed the Supreme Court out of the way by the simple expedient of suspending its sessions for more than a year.