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Politico quoted Justice Breyer saying this:
“They had 10 members for several years after the civil war. They functioned with an even number of members.”
http://www.politico.com/story/2016/10/stephen-breyer-contested-2016-election-230228#ixzz4OIcCGMOQ
In 1866, to limit the power of President Andrew Johnson, a new law that did not fill vacancies (down to 7) started to kick in. In 1863, the Supreme Court did start to have 10 justices, but often did not all meet together given sickness and vacancies. The nine justice law passed in 1869. So, it was not functionally in place “for several years,” surely not “after the Civil War.”
He also noted the Supreme Court had six justices for several years. Sure. It started that way until it went to seven in the early 18th Century. All the same, not only were there very few cases, the Supreme Court was not very influential but once Marshall came in, he usually obtained unanimity.
So, Breyer – understandably – was trying a bit too hard to undersell the differences.
Posted by: Joe | Oct 27, 2016 11:27:07 AM