Nine Justices Since 1869, and Why the Number Should Stay Nine

If you ever want to know how seriously a politician takes the Constitution, ask him how many justices sit on the Supreme Court and where the Constitution says so. The answer to the first question is nine. The answer to the second is that it does not say. The Constitution tells us that "the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." One Court. No number.

That silence is the whole story of this post. Nine is a statute, not a constitutional commandment, and a statute can be changed by anyone who can muster a majority in Congress and a signature at the other end of Pennsylvania Avenue. Congress has changed it many times. The question for a conservative is not whether it can, but whether it should, and what the record says about the last time politicians tried.

The Silence of Article III

Article III, Section 1 creates "one supreme Court" and says nothing about its size. It does tell us that judges "shall hold their Offices during good Behaviour" and that their compensation "shall not be diminished during their Continuance in Office." Those are the guarantees that make the judiciary independent: tenure and salary, protected from the political branches. Notice what the Founders did not protect, and what they left to the ordinary legislative process: the number of seats.

That choice was deliberate, or at least it was accepted. The first Congress had to build a judicial system from nothing, and it was not going to carve its choices into the Constitution. The Founders gave Congress the job of ordaining and establishing the lower courts, and in practice also the job of fixing the size of the top one. The result is that the Court's size has been a political tool since 1789, and the best way to see that is to tell the story with dates.

The Seven Changes, in Order

Here is the record. Read it slowly, because it is the strongest argument in the debate.

Count the changes yourself. From the first act to the last, the number of seats moved up and down several times in the Court's first eighty years. If you ask why, the answer is a mix of the legitimate and the partisan, and the partisan ones are the ones worth studying.

Three Stories Behind the Table

1801 and 1802: The Midnight Judges

The Judiciary Act of 1801 was passed by the outgoing Federalist Congress after the election of 1800, which Jefferson and the Democratic-Republicans had won. It created new circuit judgeships, which President Adams filled in the final days of his term, and it provided that the Supreme Court would shrink from six to five with the next vacancy, which meant Jefferson would be denied the chance to appoint a justice at the first opening. Whatever its administrative merits, the timing looked like what it was.

The Jeffersonians repealed the act in 1802, restoring the number to six and abolishing the new judgeships. That is the context for Marbury v. Madison (1803), the case about one of those last-minute commissions. For the full story of how Marshall got through that crisis, read Marshall Gave Up William Marbury's Commission to Win the Bigger Argument. The lesson is one the table makes plain: within twelve months, a party that had changed the Court's size for its own convenience watched its opponents change it back.

1837: The Count Follows the Map

The 1807, 1837 and 1863 changes were mostly about geography. The country was growing, the circuits were multiplying, and in those days a Supreme Court justice also rode circuit, traveling to hold court in the part of the country where his seat was assigned. Adding a circuit meant adding a justice. The 1837 act, which brought the number to nine, was in that spirit, even though it also happened as Andrew Jackson's appointees were reshaping the Court.

That distinction matters. Adding seats because the country needs more judges for a larger territory is an administrative decision. Adding or subtracting seats because the next president might make a particular appointment is a political one. The record contains both, and we should not pretend otherwise.

1866: A Court Shrunk to Spite a President

The most embarrassing episode came in the aftermath of the Civil War. In 1866, a Congress controlled by Republicans and locked in a bitter struggle with President Andrew Johnson passed a law that would reduce the Court from ten to seven as justices left. The purpose was open and was frequently stated: to keep Johnson from naming successors. Justice Catron died in 1865, and his seat was never filled, and when Justice Wayne died in 1867 the Court dropped to eight.

Then President Grant took office, and the same party that had cut the Court reversed itself. The Circuit Judges Act of 1869 set the number at nine, and Grant appointed two justices in 1870. A cynic will note that a party which shrinks the Court when the other side holds the White House and enlarges it when its own man arrives has not discovered a principle.

Some historians argue that there is also a second story, that the Court's seats were manipulated around the Legal Tender Cases of 1870 and 1871, in which the Court reversed itself on paper money after new justices arrived. That claim has been debated for a century and a half, and the historians disagree about whether the timing was intentional. I will not assert it as fact. The 1866 episode needs no embellishment.

The Steelman: Congress Has the Power, So Why Not Use It?

The best argument for changing the number today deserves a fair statement. The Constitution gives Congress the power to set the size of the Court, the argument runs, and Congress has used it seven times. A power that has been used repeatedly is not a violation of the Constitution. A Court that is out of step with the public, or that has become captured by one party's appointees, can be rebalanced through the same ordinary legislative process that has adjusted it before. The number nine has no sacred quality. It was chosen in 1869 to match nine circuits, and the circuit system has long since changed.

I will give that argument its due. Congress does have the power. The claim that adding seats would be "unconstitutional" is wrong, and conservatives who say it weaken a stronger argument. The question is not power. The question is wisdom, and on wisdom the record is unambiguous.

The Rebuttal: Four Points

One: the 1869 number has lasted because it won. It was not preserved by neglect. For more than a century and a half, through wars, depressions and a dozen fights over nominees, the number has stayed at nine. It survived the most serious assault in modern history, President Franklin Roosevelt's 1937 proposal to add a justice for every sitting justice over seventy and a half, up to six new seats. Roosevelt had just won reelection by a landslide, and his party had overwhelming majorities in both chambers. The proposal still failed. The Senate Judiciary Committee, controlled by his own party, issued a report rejecting it, and the Senate moved to send the bill back to committee by a lopsided vote that summer. That is the strongest evidence in the entire record: even a popular president with huge majorities could not get it done, because members of his own party concluded the cost was too high.

Two: the number protects the Court by making the next change unnecessary. If seats can be added whenever a majority is annoyed, then every future majority has the same power and the same incentive. A Court of nine becomes a Court of eleven, then thirteen, then something else, and the final stage of that logic is a body whose size tracks the electoral cycle. We followed that logic to its end, with a deliberately silly result, in A Supreme Court of 435 Justices, Where Court-Packing Logic Leads.

Three: the Court's authority rests on public belief that it is applying the law and not serving a party. The Founders understood this well. Hamilton, in Federalist 78, called the judiciary the branch with "neither force nor will, but merely judgment," and said it must depend on the public's trust. A Court that changes size with every swing in power loses the only thing it has. For a longer treatment of that idea, see Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right?.

Four: the remedy for a Court you dislike is the ordinary one. Win elections. Nominate judges whose approach you can defend. Persuade the Senate. Amend the Constitution under Article V if you must. Those are slower than adding seats, and they should be. Anything the Constitution makes slow, it makes slow on purpose.

The Arithmetic of an Arms Race

Let me put the logic in numbers, labelled as a hypothetical. Suppose a party with a thin majority adds four seats to a Court of nine and fills them. The Court is now thirteen (9 plus 4). The other side wins the next election and has the same statute and the same power. It adds six seats, filling them with its own appointees, and the Court is nineteen (13 plus 6). The first party returns to power and adds ten. Now the Court is twenty-nine (19 plus 10). Each round the number grows faster than the one before, because each majority must outbid the last to be sure of winning. By the fourth round, the Court is larger than a typical state senate, and what it decides is whatever the last election decided.

That is not a prediction. It is the ordinary logic of an arms race, and the 1866 episode shows how little it takes to begin. Within three years, the same party that had shrunk the Court restored it, and the only reason the cycle stopped is that the men of 1869 chose to stop it. It is the sort of restraint we should be proud to say we still have.

There is also a practical objection that rarely gets airtime. Courts work by deliberation. Nine people can sit around a table in a conference room and argue to a decision. Nineteen cannot. A larger Court would almost certainly sit in panels, which means the same case could come out differently depending on which panel drew it, and the Court's central function, to give one authoritative answer to a legal question for the whole country, would be gone. A Court that cannot give one answer is not a Court of last resort. It is a committee.

A Fair Word to Conservatives

Honesty requires turning the point around. Many conservatives, rightly alarmed by calls to expand the Court, have argued that nine is part of the Constitution. It is not. I would rather make the stronger argument: that nine is a settlement, a norm that both parties have upheld for more than a century and a half, and that the discipline of norms is the discipline of reciprocity. If we want a Court that cannot be packed by our opponents, we have to be willing to say that we would not pack it ourselves. A party that holds the power to change the number and chooses not to use it has done something more valuable than a constitutional text could do. It has demonstrated restraint.

That is a constitutionalist point, and it applies to the whole system of separated powers: the Constitution's text sets the structure, and the habits of the people who hold power determine whether the structure holds. Read the clause. Know what it says and what it leaves out. Then insist that the people you elect keep their hands off what the text leaves to their discretion.

The Number in Context

A caution about the broader debate. People who favor changing the Court's size tend to bundle it with other proposals, such as term limits for justices and changes to the Court's jurisdiction. Each of those raises its own questions. Congress's power over the Court's appellate jurisdiction, under the Exceptions Clause, is covered in The Exceptions Clause Gives Congress a Power Over the Courts It Rarely Uses. And the proposal for fixed terms for justices, which requires a constitutional amendment, is examined in Eighteen-Year Term Limits for Justices Sound Tidy Until You Read Article III. The text of the Constitution is on the Constitution page, and the courts page collects the basics.

The case in brief

1. The Constitution creates "one supreme Court" and does not fix its size, so nine is a statute, not a constitutional requirement.
2. Congress changed the number repeatedly between 1789 and 1869, with administrative reasons in 1807, 1837 and 1863 and openly political reasons in 1801, 1802 and 1866.
3. The 1869 return to nine has held for more than 150 years because both parties learned the cost of using the number as a weapon, and because Roosevelt's 1937 plan failed even with enormous majorities.
4. Changing the size of the Court for advantage invites the other side to do the same, and a Court that tracks the election cycle loses the public trust on which its authority depends.
5. The remedy for a Court you dislike is to win elections, nominate and confirm judges, and, if necessary, amend the Constitution, not to add seats.

What you can do: ask your senators, by letter or through their offices, to state publicly whether they would vote to change the number of justices, and file their answers where you can compare them to what they say next time the question comes up.