The New Yorker magazine of March 22, 2010, reflects on a Supreme Court without justice Stevens. In it we read,

John Paul Stevens, who will celebrate his ninetieth birthday on April 20th, generally bides his time. Stevens is the Court’s senior Justice, in every respect. He is thirteen years older than his closest colleague in age (Ginsburg) and has served eleven years longer than the next most experienced (Scalia). Appointed by President Gerald R. Ford, in 1975, Stevens is the fourth-longest-serving Justice in the Court’s history; the record holder is the man Stevens replaced, William O. Douglas, who retired after thirty-six and a half years on the bench. Stevens is a generation or two removed from most of his colleagues; when Roberts served as a law clerk to William H. Rehnquist, Stevens had already been a Justice for five years. He was the last nominee before the Reagan years, when confirmations became contested territory in the culture wars (and he was also, not coincidentally, the last whose confirmation hearings were not broadcast live on television). In some respects, Stevens comes from another world; in a recent opinion, he noted that contemporary views on marijuana laws were “reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student.”

I was surprised, when recently discussing the Court with an educated friend that he did know know that the number of Justices on the Court is not invariantly set at nine. I learned that from Dan Smoot some 40 years ago when the John Birch Society wanted to impeach Earl Warren.

There hadn't always been nine on the Court. The Judiciary Act of 1789 set the number of Justices at six. In 1863, there were ten Justices on the Court.

We read that various numbers of Justices comprised the Supreme Court,

Since the passage of the Judiciary Act, Congress has occasionally altered the size of the Supreme Court, historically in response to the country's own expansion in size. Membership was decreased in 1801 to five, then increased to seven members in 1807, to nine in 1837, and to ten in 1863. By 1869, Congress had reduced the Court's size to nine members, where it has remained since.

When Franklin D. Roosevelt's (FDR) New Deal legislation passed Congress, where the Democrats enjoyed a majority, the Supreme Court struck down a good number of the bills as unconstitutional.

This episode in FDR's presidency has been revisited in "Supreme Power: Franklin Roosevelt vs. the Supreme Court," by Jeff Shesol, and reviewed on line.

By then, the idea that there were only nine Justices (there are ten slots, BTW) had taken hold, and besides, FDR did not have the votes. In testing the waters whether he did or not, when FDR conferred with then Vice President, Jack Garner:

Jack Garner marched up the White House steps before the morning coolness had left the air. The President received him at once, and greeted him with a great show of cordiality. Garner told him that he had come to talk about the court fight, and the President nodded acquiescently.

"Do you want it with the bark on or the bark off?" Garner asked.

The President replied he didn't understand the country phrase, and Garner explained that in his part of Texas people asked for it "with the bark off" if they wanted the naked truth, whereas if they desired their feelings be spared they asked to have it "with the bark on." The President threw back his head and laughed his hearty laugh. He would have it "with the bark off," then, he said.

He got it. Garner informed him bluntly that he was licked, and he had best fold his tent and steal way from the court issue as rapidly as possible. The President shrugged his shoulders. He was ready to accept Garner's appraisal of the situation.

So the Court did not get "packed," as they say, and Earl Warren did not get impeached. No one rocked any boats.

The Neocons, who were coming into the Party at the time I was active in Youth for Goldwater, cautioned that impeachment, court packing, and the like could backfire. If the neocons resorted to it, one day it would benefit them, the next day, it would not. Like deem and pass, it was an expediency that could come back to haunt.

No, the neocons, ever the realpolitikers, cautioned. The neocons would work up from the precinct level to get control of the Party machinery. Cynically, the name of Lenin was evoked, but it was just for show, as they were convinced they'd beat the pinko liberals at their own game.

In the end, it seems the country does not like to make decisions,and deadlocks are just fine. Even in the Senate, a 59 - 41 vote is not enough to produce a "majority" at least in some cases. But with Congress and the President and the Republicans and Democrats stymied, maybe the Neocons were onto something by keeping the court a simple majority, where 5 to 4 did change the laws of the land ... I mean, "interpreted them."

Only the court, which the conservatives have slowly filled with their brethren, has escaped the deadlock due to its odd number.

What if the empty tenth Justice positioned were filled?

So far, there is no stomach for that, as least so long as the other two branches seem unable to move.

For now, the 5 to 4 set-up of the Court moves forward without deadlocks ... the one branch of government making decision after decision.

The neocons are moving forward and there is nothing much in their way.

Book says Souter mulled resignation after Bush v. Gore.

In “The Nine,” which goes on sale Sept. 18, Toobin writes that while the other justices tried to put the case behind them, vid Souter alone was shattered,” at times weeping when he thought of the case. “For many months, it was not at all clear whether he would remain as a justice,” Toobin continues. “That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same.”

What happened in those deliberations?

...it's time to push back the regressive forces in Congress. Support the Freedom of Choice Act.

Step 1:
Join NARAL Pro-Choice America in our National Call-In Day to Support the Freedom of Choice Act
- Wednesday, April 25
- Call 202-224-3121 and ask to be connected to both of your senators and your representative
- Use the following script:
“Please cosponsor the Freedom of Choice Act (H.R.1964/S.1173) to codify Roe v. Wade and guarantee the right to choose for future generations of women.”
- Click on the link [on the page linked above] to find out what other organizations are participating.

Step 2:
Fill out the form [on the page linked above] to urge your members of Congress to sign on as cosponsors, and then forward this action to your friends.
Who's involved?

NARAL Pro-Choice America is co-sponsoring the national call-in day with the following coalition partners:
Planned Parenthood Federation of America
Advocates for Youth
Alliance for Justice
American Association of University Women
American Civil Liberties Union
Catholics for a Free Choice
Center for American Progress Action Fund
Choice USA
Feminist Majority Foundation
Law Students for Choice
Medical Students for Choice
National Abortion Federation
National Asian Pacific American Women’s Forum
National Council of Jewish Women
National Council of Women’s Organizations
National Family Planning and Reproductive Health Association
National Latina Institute for Reproductive Health
National Organization for Women
National Women’s Law Center
People for the American Way
Religious Coalition for Reproductive Choice
Reproductive Health Technologies Project
Sexuality Information and Education Council of the United States
Sistersong Women of Color Reproductive Health CollectiveThe pro-choice community is working to guarantee the right to choose through the Freedom of Choice Act (FOCA). 

• FOCA will restore the reproductive rights recognized under the vision expressed in 1973 in Roe v. Wade and Doe v. Bolton, before anti-choice legislators and courts chipped away at these rights. 
• FOCA will secure the right to choose by establishing a federal law that will guarantee reproductive freedom for future generations of American women.  This guarantee will protect women’s rights even if President Bush and his allies are successful in reversing Roe v. Wade or imposing even more restrictions on our right to choose.

Click here to learn more about President Bush's Federal Abortion Ban and the Supreme Court's recent decision.

This is going to be a long battle in the war to establish and defend women's rights. I'm under no illusion that the current Congress, what with forced-pregnancy advocates sitting on both sides of the aisle, will pass this legislation, but showing support is a first step towards getting our elected officials to realize that the vast majority of Americans don't want the government controlling family planning.

Russell Shaw calls for progressives to unite around whatever Democratic Party nominee for president:

I look at this past week's 5-4 Supreme Court vote against "partial birth abortion." Then I hold up the ages of liberal Justices John Paul Stevens (87), and an increasingly feeble Ruth Bader Ginsburg (74) against the actuarial tables.

I just pray these two are able to serve on the Court until that hopefully blessed morning of January 20, 2009. At Noon on that day, a Democrat will- from my mouse to the Goddess' ears- take the Oath.I'd love for the oath-taker to be Al Gore, or John Edwards, or Bill Richardson. But if it comes down to saving Roe, I'd settle for Hillary. With more campaign funds than her Democratic opponents, her nomination is likely. I can see where Obama will fade, Edwards may need to drop out, and Gore will stay out.At this point in time, though, I can see a scenario that causes ideological purists on our side of the fence to do something stupid that will cause Hillary to fall short, and thus, pave the path for another anti-choice, Justice-appointng [sic] Republican to get into the White House.

Despite the fact that Russell Shaw is echoing radical right-wing (as well as Markos Moulitsas) talking points about "ideological purity" -- a Rovian expression if I ever heard one -- I can see his point. Just this morning, I was thinking about how any of the top four -- Obama, Edwards, Richardson or even Clinton -- would get my vote. And while I know not nearly enough to choose any one above the others, at this point, my sense is that one of them would suffice for me come November next year.
Making that decision so much easier is the fact that the Republicans have so far offered up boobs, bigots and bobbies. Given the radical and, yes, misogynist and, yes again, racist and, yes, obviously, homophobic values at the core of the right wing, I don't see myself voting for any Republican for president any time soon. Add in their modern penchant for fascistic governmental control over individuals -- making the phrase "the party of Goldwater" an oxymoronic joke -- and I don't see myself voting Republican in my lifetime.
However, Congress is a different matter. Do we continue to vote for pro-forced-pregnancy Democrats? How do we, as progressives, in good conscience cast our lot with men (yes once more, I'm afraid) who consider women's right to privacy to be non-existent, women's medical choices to be controlled by politicians, women's health to be a distraction, women's lives to be important only when not distracting from other interests, and women's bodies to be, ultimately, Property of the U.S. Government?
I wonder how many Democratic and independent voters even realize that their Democratic Senator(s) and/or Representative is an advocate of forced pregnancy.
The question is pertinent right now, pre-primaries, while we look at what kind of future we want to forge in the can't-come-soon-enough post-Bush America. Now is the time to ask the questions. Now is the time to choose. Now is the time to push for the progressives that will defend privacy and equal rights and civil rights and human rights for everyone, not just the ruling men who look upon the rest of us as "peasants."
It's not an easy thing, when the Democratic Party, whose vague favoring of progressive values stands out like a monument to all things noble and just when compared with the venal depravity that describes the power centers of the GOP, has such a slim and weak hold upon Congress.
It's all the more difficult when you consider that men claiming progressive values have historically dismissed our alarms about the Handmaid trends happening in our politics -- our politics. And it sure as heck doesn't help that ignorance and willful ignorance on the part of ostensibly well-intentioned men when it comes to issues women face continue.
The demographics are with us, though. More GOP seats in the Senate are up for election next year. Americans in general are suspicious of an overly invasive Government. And, while meaningful statistics are lacking (at least from what I can tell), based on anecdotal evidence there are quite a number of so-called "pro-life" Americans who oppose abortion until the issue comes home to roost in their own families, in their own lives.

So what's it going to be, boys? When you throw women's lives into the mix, does women's equality count as "important shit"?