The Supreme Court Did Not Get Its Own Building Until 1935, a Timeline

Imagine the highest court in the land, the final word on what the Constitution means, meeting in a room under the Senate and sharing the hallway with whoever happened to be passing through. Now imagine it did that for the better part of a century and a half. It is not a joke. It is the history of the branch the Founders said would be the weakest, and the building that finally housed it opened in 1935.

This is a timeline, so the entries come in order and each one says why it mattered. The thread running through them is simple. The framers gave the Court a constitutional duty and almost no furniture. They did it on purpose, or at least in the spirit of the thing, and the long wait for a home is a better lesson in the separation of powers than most civics classes manage.

What the Constitution actually provided

Start with the text, because the text is short. Article III, Section 1 opens: "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."

Read that slowly. It creates one court by name. It leaves the lower courts to Congress. It says nothing about how many justices sit on the Court, where they sit, what they sit in, or who pays for the lights. All of that is left to the other branches, and the purse is held by Congress. Article I, Section 9 says that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." A court that wants a building must ask the legislature for one.

That is not an accident of drafting. Alexander Hamilton explained the design in Federalist 78. The executive "holds the sword of the community" and the legislature "commands the purse." The judiciary, he wrote, "has no influence over either the sword or the purse," and "may truly be said to have neither FORCE nor WILL, but merely judgment." A branch with only judgment does not need a palace. For a very long time, it did not get one. If you want the full argument about whether Hamilton was right, read Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right?.

Timeline: the homes of the Court

1789. A Court on paper. The Judiciary Act of 1789 organized the federal courts and fixed the Supreme Court at six members: a Chief Justice and five associates. Congress did not provide a courthouse. The first justices were to ride the circuits and hold court in the districts, and when they met as a full Court they would meet wherever the government happened to be.

Why it mattered: the first statute that made the Court a working institution also set the pattern. The Court's size and its quarters were choices for Congress, made by statute, and Congress would change both many times.

February 1790. New York. The Court's first session came in early February 1790 in a building called the Exchange in New York City, then the seat of the federal government. The opening sessions were short and mostly ceremonial, and the Court had no cases to decide.

Why it mattered: the highest court opened with power in principle and nothing on the docket.

1791 to 1800. Philadelphia. When the capital moved to Philadelphia, so did the Court. It sat in buildings borrowed from the city and the state, mostly Old City Hall, with some sessions in the State House (now Independence Hall) and Congress Hall, and the great decisions of the Marshall era were still ahead. The early Court decided remarkably few cases.

Why it mattered: a new republic did not yet treat the judiciary as the equal it was meant to be. The room it sat in was on loan.

1800 to 1801. The capital moves, and the Court follows. The government relocated to the new federal city on the Potomac in 1800. The Court's Philadelphia sessions ended in August 1800, and from 1801 it met in a committee room in the Capitol, a building that was still unfinished, in a city that was mostly mud. The Court had no chambers of its own there.

Why it mattered: a Court that works in a room lent by the legislature is a tenant from its first day in the capital. How the justices deliberate behind closed doors is a separate story, told in What Happens in the Supreme Court's Conference Room After Oral Argument.

1801 to 1802. The size of the Court becomes a weapon. In 1801 the outgoing Federalist Congress passed a law that would have shrunk the Court to five justices at the next vacancy, a move aimed at denying the incoming president an appointment. The new Republican Congress repealed it in 1802.

Why it mattered: the number of justices was already a partisan tool a dozen years in. More on that below.

1803. Marbury. The Court decided Marbury v. Madison while it still had no building of its own, which is a fact worth sitting with. The opinion that established judicial review was handed down by a Court that was a tenant. John Marshall's authority came from the force of the reasoning, not from marble. See Marshall Gave Up William Marbury's Commission to Win the Bigger Argument for the case itself.

1810. The basement chamber. The Court moved into a room on the ground floor of the Capitol's north wing, beneath the Senate chamber, a semicircular vaulted space designed by the architect Benjamin Latrobe. It was the first room built with the Court in mind, and it sat below the floor of the legislature that held the Court's purse. No one writing a satire could improve on the symbolism.

Why it mattered: for the first time the Court had a room built for it, and its place under the Senate told every visitor how the branches ranked in the building.

1814 to 1819. Fire and exile. British troops burned parts of the Capitol in August 1814. The Court, like Congress, was displaced. It used a nearby tavern and another temporary courtroom in the north wing during the repairs. Latrobe's rebuilt chamber was ready by the February Term of 1819, and the Court decided McCulloch v. Maryland that year, among a series of Marshall's landmark opinions. For that story see McCulloch v. Maryland Opened a Door, and Marshall Swore It Had Walls.

Why it mattered: even in a ruined capital, the Court kept deciding cases. A court is a set of judgments, not a set of walls.

Timeline: the size of the Court

The Constitution does not fix the number of justices. Congress has. The changes are worth listing, because they show how often the number moved and why it finally stopped.

• 1789: six justices, a Chief Justice and five associates.
• 1801 to 1802: a law to cut the Court to five is passed, then repealed before it took effect.
• 1807: Congress adds a seventh seat, tied to the creation of a new circuit.
• 1837: the number rises to nine, as new western circuits are added.
• 1863: a tenth seat is created during the Civil War, another new circuit.
• 1866: Congress passes a law that reduces the Court toward seven by attrition, widely read as a way to deny President Andrew Johnson appointments.
• 1869: the Judiciary Act of 1869 sets the number at nine, where it has stood since.
• 1937: President Franklin Roosevelt proposes adding up to six justices, and Congress refuses.

The pattern is clear. Each change before 1869 followed the geography of the circuits or the politics of the moment. And the one change that was nothing but politics, the 1937 proposal, failed in a Congress controlled by the President's own party. If you want to see why nine has lasted, the argument is in Nine Justices Since 1869, and Why the Number Should Stay Nine, and the end of the road of court-packing logic is in A Supreme Court of 435 Justices, Where Court-Packing Logic Leads.

Why it mattered: a Court that expanded and contracted with the winds of politics had nowhere to put down roots. A fixed number of nine and, eventually, a fixed address belong to the same story. The institution stabilized.

Timeline: the Old Senate Chamber, and the push for a building

1860. Up the stairs. In 1859 the Senate moved into its new, larger chamber in the Capitol's extension. In December 1860 the Court moved up into the vacated old Senate chamber, a handsome room with a gallery. It stayed there for almost 75 years.

The old chamber was grander than the basement, and the Court did good work in it, from the Reconstruction cases to Plessy v. Ferguson in 1896. But it was still a room in someone else's house. A visitor to the building would have found the Court as a guest of Congress, sitting where senators once debated.

Why it mattered: a court that sits in a room lent by Congress, with no quarters of its own, is a guest in the legislature's house.

1890s to 1910s. The Court grows busy. A statute in 1891, the Evarts Act, created the circuit courts of appeals and substantially reduced the Court's mandatory review, and the docket still weighed on the Court. Many cases still came to it as of right until 1925.

Why it mattered: the building problem and the docket problem were neighbors. Both were about a Court whose house and workload were set by Congress.

Taft's campaign

William Howard Taft did the improbable. He was President from 1909 to 1913, and what he wanted more than the presidency was a seat on the Supreme Court. President Warren Harding named him Chief Justice in 1921, and Taft treated the position as an administrator's job as much as a judge's. He is the only man to have held both offices.

Taft saw three problems, and he went after all three.

1. The docket. Taft lobbied for the Judiciary Act of 1925, often called the Judges' Bill, which shifted most of the Court's jurisdiction from mandatory appeals to discretionary review by writ of certiorari. The Court gained control over what it heard. That is the origin of the modern discretionary docket, and how four votes can grant review is explained in Four Votes to Hear a Case, Five to Win It, Inside the Supreme Court's Docket.
2. The administration. Taft pressed for a more orderly federal court system, a cause that also ran through the Judges' Bill.
3. The building. He argued that a Court that sat as a tenant of Congress was a Court that appeared subordinate to Congress. He wanted a home that looked like what the Constitution said the Court was: a coequal branch.

The last was the hardest, because it needed an appropriation, and an appropriation needs votes. Taft worked it as a practiced politician would. He was a former President, he knew the leaders, and he took care that the proposal came to Congress as a modest request, not as a demand. In December 1928 Congress created the Supreme Court Building Commission, which Taft chaired, and funds followed in 1929. The site lay across from the Capitol on First Street NE, and the commission hired Cass Gilbert as architect in April 1929.

Taft did not live to see it. He resigned from the Court and the commission on February 3, 1930, and died a month later. The building went on without him.

Why it mattered: the strongest case for the building was not vanity. It was independence. A court that borrows rooms from the branch it must sometimes rule against has a quiet, constant reason to be careful.

Cass Gilbert's building

1929 to 1932. The architect was Cass Gilbert, who had designed the Woolworth Building in New York and a number of state capitols. Gilbert drew a classical temple in marble, in keeping with the Court's role as the keeper of an old and enduring law. The cornerstone was laid in October 1932, in the depths of the Depression.

October 1935. The Court first occupied the new building on October 7, 1935. Gilbert did not live to see it finished, and his son Cass Gilbert Jr. and associate John R. Rockart completed it. The building has a Great Hall, a courtroom, and chambers so that each justice had space to work on the premises.

Critics said the building was too grand for a branch of limited power. Hamilton's judgment-only branch had finally got a Greek temple, and nobody was sure whether the building flattered the Court or overstated it.

Why it mattered: the Court had waited 145 years from its first session, and it moved into its own home only a year before the confrontation over court-packing came to a head. In 1937 President Roosevelt proposed adding justices, and the Court's new independence was tested almost at once.

What the long wait tells us

I said the thread of this story is the separation of powers. Here are the conclusions, numbered, because that is how an argument should be built.

1. The framers meant the Court to be modest in force and strong in reason. Hamilton said it in Federalist 78, and the Court's early homes were the proof. Its power depended on the persuasiveness of its opinions, because it had no building, no army and no budget of its own to leverage.
2. A branch that depends on the others for its home depends on them for more. The appropriation power is the point. The question of the building was a question of dependence, and Taft understood it.
3. The Court's size and seat were political questions for a long time, and the rule of nine and a fixed address took them out of play. Stable institutions are not a minor thing in a republic. They let each generation argue the law rather than the furniture.
4. Independence is not isolation. The building that opened in 1935 did not make the Court immune from Congress. Congress still sets the Court's budget, the number of justices, and, under the Exceptions Clause, a good part of its appellate jurisdiction, a power laid out in The Exceptions Clause Gives Congress a Power Over the Courts It Rarely Uses.

The strongest objection

Here is the other side at its best. A building is a symbol, and symbols matter. The critics of Taft's temple argued that a Court housed in marble would begin to think of itself as a priesthood. They said that the old, crowded chamber kept the justices humble and near the legislature, and that distance breeds arrogance. Some critics still say that the modern Court acts as though it were a sovereign rather than a judge of cases, and the gleaming building is a stage for that attitude.

It is a serious objection, and it deserves a serious answer. The answer is that humility is a matter of doctrine, not of decor. The doctrines that keep the Court in its lane are in the text and the tradition: the requirement of a real case or controversy, the rules of standing, the habit of deciding narrowly, and the Court's lack of any power to enforce its own judgments. Those are the same whether the justices sit in a basement or in a hall of marble. A weak Court in a borrowed room is not safer for liberty than a limited Court in its own. If anything, the Court that depends on a legislature for its quarters has a reason to flinch, and flinching judges are a danger to the rule of law. The rule of law, as The Rule of Law Is Older Than the Constitution, From Magna Carta to Marbury shows, is older than any courthouse, and it asks judges to be steady, not small.

What the building should not make us forget

We should be wary of treating the marble as a promise that the Court is always right. It is not. The same Court that rose in 1935 built its reputation in the building and also made errors in it, some of which it later admitted. A temple is not an oracle. The honest conservative view is that the Court is a human institution that interprets a written text, and that the text, not the temple, is what binds. Read the Constitution's Article III yourself. It takes about a minute, and nothing in it mentions a building.

The case in brief

1. The Constitution created one Supreme Court and left its size, seat and budget to Congress, so for 145 years the Court was a tenant.
2. The Court's homes, from the Exchange in New York to the Capitol's ground-floor chamber and the Old Senate Chamber, show Hamilton's description of a branch with judgment but neither sword nor purse.
3. The number of justices shifted repeatedly until 1869 and has stayed at nine since, which gave the Court a stability it lacked for its first eighty years.
4. Chief Justice Taft won the building by tying independence to a physical home, and Cass Gilbert's courthouse was first occupied on October 7, 1935.
5. The building does not make the Court infallible or independent of Congress, since the appropriation, jurisdiction and size powers all remain with the legislature.

What you can do: read Article III, Section 1 and Article I, Section 9 side by side, then tell your children which branch holds the purse and why that matters to the judges who rule on your rights.