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Why Do 9 Justices Serve on the Supreme Court?

September 23, 2020 in History

By Dave Roos

The Constitution doesn’t stipulate how many justices should serve on the Court—in fact, that number fluctuated until 1869.

Only since 1869 have there consistently been nine justices appointed to the Supreme Court. Before that, Congress routinely changed the number of justices to achieve its own partisan political goals, resulting in as few as five Supreme Court justices required by law under John Adams to as many as 10 under Abraham Lincoln.

The U.S. Constitution is silent about how many justices should sit on the Supreme Court. In fact, the office of Chief Justice only exists because it’s mentioned in the Constitution under Senate rules for impeachment proceedings (“When the President of the United States is tried, the Chief Justice shall preside…”).

It’s 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 Act into law, he set the number of Supreme Court justices at six.

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Split Decisions Were Less of a Concern

Why six? Because Supreme Court justices in those days were also appointed to sit on federal circuit courts, of which there were 13 in 1789, one for each state. Each circuit court would be presided over by three judges: one district court judge from the state and two Supreme Court justices.

“The justices had to spend almost the entire year traveling,” says Maeva Marcus, a research professor at the George Washington University Law School and director of its Institute for Constitutional History. “And the traveling conditions were horrendous.”

To limit the geographical area traveled by the justices, the Judiciary Act of 1789 divided the circuit courts into three regions: Eastern, Western and Southern. The reason that the first Supreme Court had six justices was simple—so that two of them could preside in each of the three regions.

Marcus said that no one at the time quibbled about 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 foresee great disagreement,” says Marcus. “Plus, you didn’t always have all six justices appearing at the Supreme Court for health and travel reasons.”

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