It is only since 1869 that nine judges have been appointed to the Supreme Court. Previously, Congress regularly changed the number of judges to meet its own partisan political goals, so that five Supreme Court justices required by law under John Adams were down to ten under Abraham Lincoln.
The US Constitution does not say how many judges should sit on the Supreme Court. In fact, the office of Chief Justice only exists because it is mentioned in the Constitution under the Senate Rules for Impeachment Proceedings (“When the President of the United States is tried, the Chief Justice presides over … ”).
It is Congress, not the Constitution, that decides the size of the Supreme Court, which it did for the first time under the Judiciary Act of 1789. When George Washington signed the law, he set the number of Supreme Court justices to six.
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Shared decisions were less of a concern
Why six? Because at the time, Supreme Court justices were also appointed to sit in federal circuit courts, including 13 in 1789, one for each state. Each district court would be presided over by three judges: one judge from the state district court and two judges from the Supreme Court.
“The judges must have spent most of the year traveling,” explains Maeva Marcus, professor-researcher at the law school of George Washington University and director of its Institute of Constitutional History. “And the travel conditions were appalling.”
To limit the geographical area covered by judges, the Judiciary Act of 1789 divides the circuit courts into three regions: eastern, western and southern. The reason the first Supreme Court had six judges was simple – so that two of them could preside over each of the three regions.
Marcus said no one at the time had criticized the fact that six is an even number, which leaves open the possibility of 3-3 split decisions.
“They never even thought about it, because all the judges were federalists and they didn’t anticipate big disagreements,” Marcus says. “Additionally, the six justices did not always appear in Supreme Court for health and travel reasons.”
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Adams cuts court to snub Jefferson
The federalist’s grip on power did not last, however, sparking the very first political controversy over Supreme Court appointments. In 1800 incumbent John Adams, a federalist, lost the presidential election to Thomas Jefferson and the Democratic Republicans.
At that time, the post-election “lame duck” session of Congress lasted until the following March, Marcus says, and Adams and his federalists in Congress wanted to do everything in their power to deny Jefferson a choice. to the Supreme Court.
Although there is much controversy today around replacing a Supreme Court justice in an election year, Adams had no such qualms. In 1800, a month before the presidential election, Chief Justice Oliver Ellsworth resigned from the Court due to illness. Adams appointed and confirmed Ellsworth’s successor, John Marshall, on February 4, 1801 during the lame duck session of Congress.
Adams and the Federalists then went further. They passed the Judiciary Act of 1801 which reduced the number of Supreme Court justices from six to five, further reducing the chances that Jefferson could appoint a new judge during his tenure.
In response, Jefferson and his new Congress quickly repealed the Judiciary Act of 1801, formally reducing the number of judges to six. And since no judge had died in the meantime, the number of sitting judges never dropped to five.
During the civil war, the justice account changes every few years
By the onset of the Civil War, the number of Supreme Court justices had grown to nine to cover additional circuit courts in the expanding American West. But Abraham Lincoln, upset by the Supreme Court’s decision in 1857 Dredd Scott and wanting to cement an anti-slavery majority in the court, added a 10th judge in 1863.
After the Civil War and Lincoln’s assassination, Congress clashed with Lincoln’s successor, Andrew Johnson, who quickly rolled back the “radical Republicans” rebuilding plan. To limit Johnson’s power, Congress passed a law in 1866 that reduced the number of Supreme Court justices to seven, while ensuring that Johnson would not have the opportunity to fill a vacant seat.
The last time Congress changed the number of Supreme Court justices was in 1869, again to meet a political end. Ulysses S. Grant was elected president in 1868 with the support of Congressional Republicans who hated Johnson. As a gift to Grant, Congress increased the number of judges from seven to nine, and Grant used those choices.
The Supreme Court had ruled that paper money was unconstitutional, which would have “wreaked havoc” with the US Treasury, Marcus said. But Grant and Congress quickly upheld two new justices who overturned the court’s ruling in the previous case, saving Republicans the trouble of undoing the entire national legal tender system.
FDR tried to ‘bring the court together’ with 15 judges
Cartoon of President Franklin D. Roosevelt’s 1937 Supreme Court packing plan and his opposition, illustrated by JN “Ding” Darling.
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In the 1930s, the Supreme Court issued a series of decisions that violated some of the laws of Franklin D. Roosevelt’s New Deal. FDR and its Justice Department responded with a bill that would have allowed it to appoint six new Supreme Court justices to reach a total of 15.
Under the bill, all sitting judges over the age of 70 would be asked to resign. If one of them refused, FDR would be allowed to appoint an additional judge to the bench. Given that six of the nine judges at the time were over 70, this created the possibility of six new Supreme Court seats.
The FDR plan, decried as “racing the court” with its political supporters, was defeated in the Senate by a 70-20 vote.
READ MORE: When FDR tried to ‘pack’ the Supreme Court
