How many judges does it take to make a Supreme Court?

• Author: Orth, John V.

How many judges does it take to make a supreme court? Three? Five? Seven? Nine? Or more? If state as well as federal courts are considered, all answers have been correct at one time or another, in one court or another. State constitutions sometimes set the number of judges; sometimes, like the U.S. Constitution, they leave it to the legislature to decide. (1) The size of a court is usually determined by more or less objective considerations, such as the cost of the judicial establishment, the size of the caseload, or the existence of other judicial duties such as circuit-riding, but occasionally in notorious cases the number of judges is increased or decreased to serve partisan purposes. "We are under a Constitution," Charles Evans Hughes once remarked off-the-cuff and to his everlasting regret, "but the Constitution is what the judges say it is." (2) As the politicians are well aware, sometimes it matters not just who the judges are but how many there are.

Ever since the Judiciary Act of 1869 (3) the authorized strength of the United States Supreme Court has remained at nine. So long accustomed to that number have we become that it seems just about perfect--not too large, not too small. State supreme courts tend not to exceed the federal number. With larger caseloads but smaller jurisdictional areas, they typically function today with nine, seven, or five judges.

Although the size of the U.S. Supreme Court has remained constant since 1869, the status quo was memorably challenged in 1937, when President Franklin Roosevelt proposed his Court Reform Bill, better known as the "court-packing plan," designed to secure a majority of justices to uphold the government's economic program. (4) Authorizing the president to appoint one new justice for every sitting justice over the age of seventy, the bill provided for a maximum complement of as many as fifteen judges. (5) Never adopted, the proposal foundered on a public consensus that it would have too obviously politicized the judicial branch. In any event, a majority of the sitting justices rather suddenly coalesced in support of the president's program, the so-called "switch in time that saved nine." (6)

For the first century of American history the number of U.S. Supreme Court justices was closely tied to the number of federal judicial circuits. The connection was forged by the original judiciary act in 1789, which created the federal judicial system of district and circuit courts, topped by a supreme court. Although the act provided for the appointment of district judges and supreme court justices, no circuit judgeships were authorized. Instead, the circuit courts were to be staffed by judges from the other two courts. At first, the nation was divided into three judicial circuits, each to be visited twice yearly by two supreme court justices, who in combination with the resident district judge would form the circuit court. (7) The number of circuits inevitably grew with the nation, but political considerations often played a role in determining when to recognize new circuits and which states to include. The assignment of the states in the circuits was important because of the tradition of placing one representative from each circuit on the court.

Circuit-riding quickly became an object of complaint with the justices. Particularly onerous in the early days, it was never easy for the elderly men typically appointed to the court. Justice James Iredell of North Carolina, who drew the Southern circuit in the 1790s, was described as leading "the life of a post boy," traveling as much as 1,900 miles in a single circuit. (8) Even as transportation improved to make travel less difficult, the nation expanded in size to make the distances to be covered ever greater. In 1793 it was provided that only one supreme court justice was required to visit each circuit.9 In 1801, as we will see, circuit-riding was briefly eliminated but was quickly restored the next year, under circumstances that made further changes difficult. Although the circuits were periodically reconstituted over the years, the number of justices seemed for long inescapably tied to the number of circuits. At last, the process of breaking the link began when circuit judgeships were finally authorized by the Judiciary Act of 1869, the same act that stabilized the court's membership at nine. (10) Nominal circuit-riding duties for the justices continued, however, until the creation in 1891 of the circuit courts of appeals (since 1948 called simply the courts of appeals). (11) Today, the remaining circuit duties of the justices are merely vestigial. Applications for stays, for bail, or for extensions of time are addressed to the circuit justice for the circuit in which the case arises. (12) Now that there are fourteen circuits, some justices must necessarily be assigned to more than one circuit. (13)

Nine as the designated number of circuits and justices was first attained in 1837, (14) but the upheaval of the Civil War caused a couple of temporary distortions. In 1863 Congress increased the size of the court from nine to ten, in order to provide a circuit justice for an additional circuit created on the admission of California (15) and to permit President Abraham Lincoln to name the Democratic but Unionist Stephen J. Field to the court. In 1866 an illconceived and short-lived judiciary act reduced the number of justices from ten to seven after three vacancies to deny President Andrew Johnson any judicial appointments. (16)

The court's membership had first reached seven in 1807. (17) Before that, throughout the first two decades of the court's existence, the authorized number of justices had generally held at six. The Judiciary Act of 1789 had set the pattern: "[T]he supreme court of the United States shall consist of a chief justice and five associate justices...." (18) In a notorious maneuver in 1801 the Federalist Party, having lost the election of 1800, used its lameduck majority to pass a new judiciary act that combined many admirable features, including the elimination of circuit-riding and the creation of circuit courts of appeals, with a reduction in the size of the court from six to five on the next vacancy, apparently to deny the incoming president, Thomas Jefferson, the opportunity to make an appointment. (19) The victorious Jeffersonians, of course, lost no time in using their newfound legislative power to reverse the Federalist measure. A repeal act, adopted March 8, 1802, the first act of the new congress, restored the status quo ante, jettisoning the good with the bad and returning the authorized strength of the court to six. (20) Yet another judiciary act cancelled the 1802 term of the court, (21) apparently to delay the hearing of Marbury v. Madison, a case with implications for the constitutionality of the abolition of the courts of appeals. (22)

Legislative fiddling with the number of judges was perhaps a necessary consequence of the judiciary's new-found security of tenure. Durante bene placito, "during good pleasure," were the Latin words that...