Why do Democrats want 13 Supreme Court justices? Their answer doesn't make much sense.

Of all the questions raised by the Judiciary Act of 2021 — the bill introduced by Democratic lawmakers last week that would expand the Supreme Court to 13 justices — perhaps the most basic is: Why four new justices? Why not two? Or six? Is there something lucky about having 13 justices?

The bill's co-sponsors would have you believe that they chose this number after a close consideration of the court's history. “Thirteen justices would mean one justice per circuit court of appeals,” explained co-sponsor Rep. Hank Johnson, D-Ga., during last Thursday’s news conference, “consistent with how the number of justices was originally determined, so each justice can oversee one circuit.”

House Judiciary Committee Chairman Jerrold Nadler agreed: “Nine justices may have made sense in the 19th century when there were only nine circuits. ... But the logic behind having only nine justices is much weaker today, when there are 13 circuits. Thirteen justices for 13 circuits is a sensible progression.”

History of riding circuit, reforms

As much as I’d like to believe that Democratic politicians are sincerely interested in steering the nation's highest court back to its original purpose, I’m afraid that their explanation here doesn’t hold up to scrutiny. It ignores reforms to the judicial system over the past 100 years. Thanks to Congress, the responsibility that Supreme Court justices have for the judicial circuits to which they are assigned is not remotely close to what it was in the 1800s.

In the court’s early years, justices made annual trips to their circuits. “Riding circuit,” as it was called, took the justices out of Washington for much of the year. And they didn’t merely oversee the courts: For most of the 19th century, circuit courts functioned as trial courts and the justices, along with district court judges, sat as trial judges. That is why Chief Justice John Marshall presided over Aaron Burr’s trial at a federal court in Richmond.

This situation became untenable after the Civil War. As Felix Frankfurter (before he became a justice himself) and James Landis explained in "The Business of the Supreme Court: A Study in the Federal Judicial System," “The Supreme Court docket became a record of arrears. Justices could not attend circuit; circuit work lapsed more and more into the unrestrained power of a single district judge; new states were added to the old circuit system.” As a result, the second half of the 19th century saw “the struggle for the elimination of the circuit duties of the Justices and the establishment of an intermediate appellate tribunal to relieve the country from injustices due to inadequate judicial resources.”

The most significant reform came in 1869, when the same act that established the number of nine justices also created circuit court judgeships. These new judges made it possible to also reduce the circuit-riding schedule of Supreme Court justices to every two years.

Congress created another buffer between the justices and their assigned circuits with the Evarts Act of 1891, which added a judge to each circuit and created the Circuit Courts of Appeals. The justices no longer had to ride circuit, though the responsibility was not officially eliminated until 20 years later.

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In short, since the 1860s justices have had much less responsibility for the circuits they oversee. Their duties now pertain primarily to emergency requests. Contrary to what Reps. Johnson and Nadler would have you believe, there is not an urgent need to add four justices to reduce duties to the regional circuits.

It’s also worth remembering that the three justices who currently oversee multiple circuits are Chief Justice John Roberts and Justices Samuel Alito and Brett Kavanaugh. I doubt that the Democratic lawmakers are eager to implement a reform so that these particular justices can better attend to their duties on the Supreme Court.

Democrats don't really care about the history, they want to pack the court

So you’re welcome to believe the pseudo-historical argument the bill’s sponsors provide, but I suspect a more cynical and obvious motive: They want to cancel the votes of President Donald Trump’s three appointees — to eliminate the influence of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — and to add one more Biden appointee for good measure.

Some supporters of the bill are more honest than its sponsors. Ian Millhiser of Vox celebrates the proposal as an opportunity to redress some of the Constitution’s failings: Trump won the presidency without winning the popular vote, and his Supreme Court appointees were confirmed by Republicans who represented fewer people than their Democratic counterparts. Therefore, “legislation adding seats to the Supreme Court would give Democrats control of a body that they rightfully would already control if the United States chose presidents and senators in free and fair elections where each citizen’s vote counted equally.”

In this view, packing the court gives the Democrats what is rightfully theirs and redresses those pesky details like the Electoral College and equal representation in the Senate.

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You can see why Reps. Johnson and Nadler wouldn’t want to say that the bill’s purpose is to undermine the electoral framework established by the Constitution. But while their historical argument may not be as radical, it is equally absurd.

Christopher J. Scalia is a co-editor of two collections of his father’s writings, “Scalia Speaks: Reflections on Law, Faith, and Life Well Lived” and “On Faith: Lessons from an American Believer.”

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This article originally appeared on USA TODAY: Court packing: Real motive for adding to the Supreme Court is not historical