Solely since 1869 have there persistently been 9 justices appointed to the Supreme Court docket. Earlier than that, Congress routinely modified the variety of justices to realize its personal partisan political objectives, leading to as few as 5 Supreme Court docket justices required by regulation below John Adams to as many as 10 below Abraham Lincoln.
The U.S. Structure is silent about what number of justices ought to sit on the Supreme Court docket. In reality, the workplace of Chief Justice solely exists as a result of it’s talked about within the Structure below Senate guidelines for impeachment proceedings (“When the President of the USA is tried, the Chief Justice shall preside...”).
It’s Congress, not the Structure, that decides the scale of the Supreme Court docket, which it did for the primary time below the Judiciary Act of 1789. When George Washington signed the Act into regulation, he set the variety of Supreme Court docket justices at six.
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Cut up Selections Have been Much less of a Concern
Why six? As a result of Supreme Court docket justices in these days have been additionally appointed to sit down on federal circuit courts, of which there have been 13 in 1789. Every circuit court docket can be presided over by three judges: one district court docket decide from the state and two Supreme Court docket justices.
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“The justices needed to spend virtually the whole 12 months touring,” says Maeva Marcus, a analysis professor on the George Washington College Regulation College and director of its Institute for Constitutional Historical past. “And the touring circumstances have been horrendous.”
To restrict the geographical space traveled by the justices, the Judiciary Act of 1789 divided the circuit courts into three areas: Japanese, Center and Southern. The rationale that the primary Supreme Court docket had six justices was easy—in order that two of them might preside in every of the three areas.
Marcus mentioned that nobody on the time quibbled about the truth that six is an excellent quantity, which leaves open the opportunity of 3-Three cut up selections.
“They by no means even thought of it, as a result of all of the judges have been Federalists they usually didn’t foresee nice disagreement,” says Marcus. “Plus, you didn’t at all times have all six justices showing on the Supreme Court docket for well being and journey causes.”
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Adams Shrunk the Court docket to Snub Jefferson
The Federalist's grip on energy didn’t final, nevertheless, prompting the very first political controversy over Supreme Court docket nominations. In 1800, incumbent John Adams, a Federalist, misplaced the presidential election to Thomas Jefferson and the Democratic-Republicans.
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In these days, the post-election “lame duck” session of Congress lasted till the next March, says Marcus, and Adams and his Federalists in Congress wished to do the whole lot of their energy to disclaim Jefferson a Supreme Court docket choose.
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Whereas there’s lots of controversy as we speak round changing a Supreme Court docket justice in an election 12 months, Adams had no such qualms. In 1800, a month earlier than the presidential election, Chief Justice Oliver Ellsworth resigned from the Court docket due to sickness. Adams nominated and Congress confirmed Ellsworth’s successor, John Marshall, on February 4, 1801 throughout the lame duck session of Congress.
Adams and the Federalists then went a step additional. They handed the Judiciary Act of 1801 which decreased the variety of Supreme Court docket justices from six to 5, additional decreasing the percentages that Jefferson would get to appoint a brand new justice throughout his time period in workplace.
In response, Jefferson and his new Congress rapidly repealed the Judiciary Act of 1801, bringing the variety of justices formally again to 6. And since no justice had died within the interim, the variety of seated justices by no means truly dropped to 5.
Throughout Civil Warfare, the Justice Rely Modified Each Few Years
By the beginning of the Civil Warfare, the variety of Supreme Court docket justices had elevated to 9 so as to cowl further circuit courts within the increasing American West. However Abraham Lincoln, upset over the Supreme Court docket’s 1857 resolution in Dred Scott and desirous to cement an anti-slavery majority on the Court docket, added a 10th justice in 1863.
After the Civil Warfare and Lincoln’s assassination, Congress clashed with Lincoln’s successor, Andrew Johnson, who was quickly undoing the “Radical Republicans’” plan for Reconstruction. To restrict Johnson’s energy, Congress handed laws in 1866 that minimize the variety of Supreme Court docket justices again to seven, all however assuring that Johnson wouldn’t have the chance to fill a vacant seat.
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The final time Congress modified the variety of Supreme Court docket justices was in 1869, once more to fulfill a political finish. Ulysses S. Grant was elected president in 1868 with the backing of the congressional Republicans who had hated Johnson. As a present to Grant, Congress elevated the variety of justices from seven again to 9, and Grant gamely used these picks.
The Supreme Court docket had simply dominated that paper cash was unconstitutional, which might have “wreaked havoc” with the U.S. Treasury, says Marcus. However Grant and Congress rapidly confirmed two new justices who reversed the Court docket’s resolution within the earlier case, saving the Republicans from having to undo the nation’s whole system of authorized tender.
FDR Tried to ‘Pack the Court docket’ with 15 Justices
Within the 1930s, the Supreme Court docket issued a sequence of rulings that undercut a few of Franklin D. Roosevelt’s New Deal laws. FDR and his Justice Division responded with a proposed invoice that might have allowed him to call six new Supreme Court docket justices to succeed in a grand complete of 15.
Below the proposed laws, all sitting justices older than 70 can be requested to resign. If any of them refused, FDR can be allowed to appoint an extra justice to the bench. Since six of the 9 justices on the time have been older than 70, that created the opportunity of six new seats on the Supreme Court docket.
FDR’s plan, decried as “packing the court docket” along with his political supporters, was shot down within the Senate by a vote of 70-20.
READ MORE: When FDR Tried to 'Pack' the Supreme Court docket