In all of this madness over forcing the Court to one political ideology or another, however, there is a good point being made: the Supreme Court is too small. For one thing, the country has grown tremendously since the Court’s membership was last expanded in 1869. America’s population in 1870 was 38 million. In 2010 it was 308 million, and the Census Bureau’s most recent estimate from 2017 is 325 million. There are 8.5 times as many Americans and the same number of Court seats.
More importantly to the Court: there are more laws than there used to be and, consequently, more legal disputes. In 1789 or even 1869, the federal government made a small impact on the average American’s life. Since then, the kind of laws Roosevelt wanted to pack the Court to uphold have multiplied. With that explosion of federal law and regulation comes a vast increase in federal litigation. The Courts of Appeal resolve these as best they can, but if the Supreme Court does not hear a case, the result is often one that leaves one circuit contradicting another in interpreting a given law. This means federal law is not uniform across the country. The Supreme Court’s most important job is to resolve such circuit-splits. But with limited manpower, they cannot possibly keep up with it all.
From a political perspective, the Court’s small size has the troubling effect of making each justice’s nomination an event of apocalyptic proportions.