Why Are There Nine Supreme Court Justices?

(Last Updated On: June 1, 2018)

Nine Supreme Court Justices

A Short History of the Number of Supreme Court Justices

Having nine Supreme Court Justices makes a lot of sense. With nine justices, there is no way that a case can end in a tie, unless a justice chooses to abstain.

Article III of the Constitution specifies that the United States must have a Supreme Court to adjudicate the laws of the land. Known as the court of last resort, the Supreme Court has ruled on everything from civil rights, to tax law, to presidential elections. To date, there have been 112 justices, 17 of which were chief justices. But, interestingly, the court did not always have nine justices. While Article III stipulates that the US must have a Supreme Court, it does not lay out how many justices are to serve on the Supreme Court. So, here’s a short history of how we came to have nine Supreme Court Justices.

The Judiciary Act of 1789

The Judiciary Act of 1789 called for the appointment of six justices. As the nation became larger, Congress continued to add justices to correspond with the growing number of circuit courts (the Constitution allows for the creation of lower courts, but it does not specify how many we must have). In 1807 there were seven, by 1837 there were nine, and in 1863 there were ten.

The Judicial Circuits Act of 1866

In 1866, Congress passed Judicial Circuits Act of 1866 which held that the next three justices to retire would not be replaced. Consequently, the bill removed one seat in 1866 and a second in 1867. In 1869, however, with the passing of the Circuit Judges Act, the number of justices returned to nine, where it has remained ever since.

Interestingly, neither the president at the time, Andrew Johnson, nor the legislature, were the main drivers of the Circuit Judges Act. Rather Salmon P. Chase, Chief Justice of the Supreme Court at the time, proposed the legislation. Chase wanted there to be nine Supreme Court Justices so that there would not be any judicial ties. In addition, Chase wanted a raise for the Supreme Court Justices, and he thought that they would be more likely to get a raise if there were even fewer than nine; however, he was never able to successfully lobby for fewer justices.

The Switch in Time that Saved Nine

In 1939, FDR attempted to pack the court with justices that would uphold his New Deal legislation, and we nearly had fifteen instead of nine Supreme Court Justices. FDR’s proposed legislation was never voted on by congress and the event has gone down in history as the switch in time that saves nine, in which associate justice Owen J. Roberts seemingly changed his mind on Parrish v. West Coast Hotel Co., and thus, ensured that there would continue to be nine Supreme Court justices.

So, while the Constitution doesn’t stipulate how many justices the Supreme Court must have, nine seems like a pretty reasonable number. And, unless some unforeseen political crisis surrounding a piece of legislation comes to the fore, it’s doubtful that we’ll move away from having nine Supreme Court Justices any time soon.


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