OK...so I am not a lawyer, but follow me a sec here.
When it was brought up that The Judiciary Act of 1869 would prevent us from adding SCOTUS Judges (and in fact this is what prevented FDR from doing it) I decided to delve deeper into the Act.
It would seem we could make an argument for the immediate appointment of THREE Biden judges to SCOTUS right after he is inaugurated, all while keeping within the spirit and intent of the law. We could also in a second scenario, make an argument that three current Justices should be demoted (and this assumes Amy Coney Barrett is seated)
First, let’s look at the Judiciary Act of 1869:
CHAP. XXII. - An Act to amend the Judicial System of the United States.1870, eh. 186.Post, p. 179. 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 hereafter consist of the Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum; and for the purposes of this act there shall be appointed an additional associate justice of said court. [This section sets the number of SCOTUS Justices at nine]
SEC. 2. And be it further enacted, That for each of the nine existing judicial circuits there shall be appointed a circuit judge, who shall reside in his circuit, and shall possess the same power and jurisdiction therein as the justice of the Supreme Court allotted to the circuit. The circuit courts in each circuit shall be held by the justice of the Supreme Court allotted to the circuit, or by the circuit judge of the circuit, or by the district judge of the district sitting alone, or by the justice of the Supreme Court and circuit judge sitting together, in which case the justice of the Supreme Court shall preside, or in the absence of either of them by the other, (who shall preside,) and the district judge. And such courts may be held at the same time in the different districts of the same circuits, Cases may be and cases may be heard and tried by each of the judges holding any such court sitting apart by direction of the presiding justice or judge, who shall designate the business to be done by each. The circuit judges shall each receive an annual salary of five thousand dollars.
[This section is important, as it states the REASON for nine SCOTUS judges is that there should be one from each Circuit. When this Act was passed, there were NINE Circuits. Today there are TWELVE. In keeping with the spirit of the law as written then, we could add three Justices...since the intent was for the SCOTUS to represent the whole of the United States...since they all were to come from different Circuits]
SEC. 5. And be it further enacted, That any judge of any court of the United States, who, having held his commission as such at least ten years, shall, after having attained to the age of seventy years, resign his office, shall thereafter, during the residue of his natural life, receive the same salary for which was by law payable to him at the time of his resignation.
[Sec 3 and 4 omitted as they have no bearing on this issue]
[This section calls for the retirement of any SCOTUS judge who has reached seventy years old, provided that they also have served ten years on the Court. Goodbye Clarence!!]
SEC. 6. And be it further enacted, That this act shall take effect on the first Monday of December, eighteen hundred and sixty-nine. APPROVED, April 10, 1869.
OK...so NOW...let’s look at who is currently on the Court, when they were appointed, what Circuit they came from, and their age:
First, the Conservatives:
Chief Justice: John G. Roberts, DC Circuit, seated 2005 (15 years) (age 65)
Clarence Thomas, DC Circuit, seated 1991 (29 years) (age 72)
Samuel A. Alito, 3rd Circuit, seated 2006 (14 years) (age 70)
Neil M. Gorsuch, 10th Circuit, seated 2017 (3 years) (age 53)
Brett M. Kavanaugh, DC Circuit, seated 2018 (2 years) (age 55)
Now, the Libs:
Stephen G. Breyer, 1st Circuit, seated 1994 (26 years) (age 82)
Sonia Sotomayor, 2nd Circuit, seated 2009 (11 years) (age 66)
Elena Kagan, Soliticor General (no Circuit) seated 2010 (age 60)**
**resides in 2nd Circuit
So, the current makeup is 5-3. And if Amy Coney Barrett is seated then that is 6-3 and she comes from the Seventh Circuit.
NOW...the bolded people are aged out. That would be Thomas, Alito, and Breyer. Now there’s three justices right there. New makeup 3-2 (or 4-2 if Barrett is seated)
Add three replacements by Biden and we end up with a 4-5 SCOTUS, assuming Biden picks all Libs.
That is the first way to overcome the barriers of “court packing” we would be following the actual law in forcing the retirement of those three judges Read Section 5.
NOW...here is where we get to SIX...
In keeping with Section 2...the number of Justices on SCOTUS is set at nine, one from each Circuit then in existence. There are now twelve. So...we can argue that the spirit and intent of the law as written...was that the SCOTUS should represent the whole of the United States, and thus three more Justices are needed so that there would be one from each District.
Now, this gets tricky, because of the bolded and italicized names...these violate another area of The Judiciary Act of 1869 — Kavanuagh, as he comes from the DC Circuit, as does Roberts, who would stay as he is not aged out...and is under the age of 70...goodbye Brett!
Unfortunately, we’d also need to let Kagan go, as she is in the 2nd Circuit by residence, but did not serve on that court. Sonia Sotomayor DID serve on the 2nd Circuit.
So if we go that far, it is a wash….one Con and one Lib gone, so now we have a 3-4 SCOTUS. And Biden names two new Justices. Now there’s EIGHT Biden appointees!
So, what we then would have is as follows: Regular type is one who stays. Italicized and bolded would be Biden replacements for Scenario One...which is three appointees (the ones aged out)
First, the Conservatives:
Chief Justice: John G. Roberts, DC Circuit, seated 2005 (15 years) (age 65)
Neil M. Gorsuch, 10th Circuit, seated 2017 (3 years) (age 53)
Brett M. Kavanaugh, DC Circuit, seated 2018 (2 years) (age 55)
Amy Coney Barrett, 7th Circuit, seated 2020 (0 years) (age 48)**
**pending. This assumes she is seated.
Now the Libs:
Sonia Sotomayor, 2nd Circuit, seated 2009 (11 years) (age 66)
Elena Kagan, Soliticor General (no Circuit) seated 2010 (age 60)**
**resides in 2nd Circuit
BIDEN APPOINTEE
BIDEN APPOINTEE
BIDEN APPOINTEE
This yields a 5-4 Court in our favor.
Now...Scenario Two. This adds the three Justices for the fact that there is now twelve Circuits
This yields a 8-4 Court in our favor.
Lastly, Scenario Three, in which Kavanaugh and Kagan are demoted as they are from Circuits where a more senior Justice is already from, AND the aged-out Justices are retired AND we expand to 12 Justices.
First, the Conservatives:
Chief Justice: John G. Roberts, DC Circuit, seated 2005 (15 years) (age 65)
Neil M. Gorsuch, 10th Circuit, seated 2017 (3 years) (age 53)
Amy Coney Barrett, 7th Circuit, seated 2020 (0 years) (age 48)**
**pending. This assumes she is seated.
Now the Libs:
Sonia Sotomayor, 2nd Circuit, seated 2009 (11 years) (age 66)
BIDEN APPOINTEE — 1st Circuit
BIDEN APPOINTEE — 3rd Circuit
BIDEN APPOINTEE — 4th Circuit
BIDEN APPOINTEE — 5th Circuit
BIDEN APPOINTEE — 6th Circuit
BIDEN APPOINTEE — 8th Circuit
BIDEN APPOINTEE — 9th Circuit
BIDEN APPOINTEE — 11th Circuit
(note DC is twelfth Circuit)
This yields a 9-3 Court...and if we could stop Barrett...we could get a NINTH Biden appointee, and a 10-2 Court.
ALL OF IT...in keeping with the law as written, and in keeping with the spirit and intent of the same.
Time to play hardball.
Or am I missing something here??