For absolutely no reason at all I thought we'd spend a little time talking about the Justices of the Supreme Court, specifically, why are there nine of them?
The Constitution...well, the Constitution isn't a foolproof document. It's not, you know, the Bible. The Constitution doesn't address the rights of people of color, or women. As it relates to the function of the Supreme Court the Constitution doesn't even outline what the exact power of the Supreme Court would be, nor does it explain how the Judicial Branch should be organized, nor does it even set out how many justices should sit on the Supreme Court, their qualifications, age, experience, or even citizenship. The only reason there's a Chief Justice at all comes from Article 1 Section 3 in which it says, in reference to impeachment proceedings:
When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrent of two thirds of the members present.
Like a lot of issues the United States would encounter - be it slavery or women's rights - if you look to the Constitution for guidance, you're likely to find that the Founding Fathers (in all their infinite wisdom) kicked the can down the road for someone else to deal with. The Constitution of the United States was ratified so as to replace the Articles of Confederation because, buddy, the Articles of Confederation sucked.
So when the Washington administration and the 1st Congress took office, figuring out the judiciary system was fairly important - the first bill to come before the Senate was "An Act to Establish the Judicial Courts of the United States," or Judiciary Act of 1789. It established the "structure and jurisdiction of the federal court system," as well as creating the office of the Attorney General. The basic system established with the Judiciary Act of 1789 is basically the same today, with a few changes here and there. We'll get into those in a minute.
The Judiciary Act of 1789 divided the country into 13 judicial districts (one for each state) which were then organized into an Eastern, Middle, and Southern District. Initially there was a Chief Justice and five Associate Justices. That makes six - two for each District. Until 1890 the Justices of the Supreme Court were obligated to "ride circuit" and hold court twice a year in each judicial district. What about 3-3 ties? Maeva Marcus, a research professor at George Washington University and the director of GWU's Institute for Constitutional History, said they weren't worried about that because they were all Federalists, anyway.
After declining Washington's offer to become his first Secretary of State, New York's John Jay accepted the position of Chief Justice of the Supreme Court hoping that the judicial branch would be on equal footing with the executive and legislative branches. The first real test was 1793's Chisholm v. Georgia. The State of Georgia had purchased supplies from South Carolina merchant Captain Robert Farquhar during the Revolutionary War, but later refused to pay because Farquhar was a British loyalist. After Farquhar died, Alexander Chisholm became executor of Farquhar's estate, and promptly sued the State of Georgia in the Supreme Court for the unpaid amount (this was A Thing at the time). Upon notice of the lawsuit, Georgia said it was immune from lawsuits because it was a sovereign state, and just...didn't show up.
On its face, Georgia's was a preposterous argument. Article III Section 2 of the Constitution says federal courts can decided cases "between a State and citizens of another State." They ruled in Chisholm's favor, ordering Georgia to pay up. Remember that - at the time - there were two political parties: Federalists (like Alexander Hamilton and John Jay) and Anti-Federalists (like Thomas Jefferson and James Madison), whose entire platform was to support the opposite of whatever the Federalists wanted. As soon as the Supreme Court ruled against Georgia, it led to an outcry against the overreach of the federal government - precisely what the Anti-Federalists feared. Georgia still said they wouldn't pay. John Jay quit the Supreme Court to be the governor of New York, angry over the lack of respect for the judiciary as well as the demands of riding the circuit, given the transportation quality of late-18th century American roads. By 1795 Congress had passed and the states had ratified the 11th Amendment, which said the judicial branch's power doesn't extend to lawsuits brought against a State by a citizen of another state or foreign country. Congress neutered the Supreme Court...for a while.
There were three Chief Justices in the first eleven years of the Supreme Court from 1789-1800: Jay, John Rutledge (who lasted just over four months because he served in an interim capacity during a Congressional recess. When Congress returned from recess, the Senate didn't confirm him and his nomination was withdrawn. Nevertheless his four months count) and Oliver Ellsworth (who wrote the Judiciary Act of 1789). Ellsworth's term lasted the duration of the Adams administration, and retired because of "the gravel and the gout" in his kidneys.
This is where things get a little weird with the executive branch and the judiciary. Over the course of the campaign for the presidency in 1800, the incumbent Federalist John Adams and Secretary of State/OG Anti-Federalist (who by this point went by the Republicans) Thomas Jefferson waged a bitter war more reminiscent of recent political campaign history than what you would expect.
The Federalists called Jefferson an "atheist in religion, and a fanatic in politics" (history doesn't repeat itself, but it does rhyme). Yale President Timothy Dwight said a Jefferson presidency would result in the Bible being "cast into a bonfire, our holy worship changed in a dance of Jacobin [frenzy], our wives and daughters dishonored, and our sons converted into the disciples of Voltaire...Murder, robbery, rape, adultery, and incest will be openly taught and practiced, the air will be rent with the cries of distress, the soil will be soaked with blood, the nation black with crimes."
Federalist newspapers warned prospective voters (i.e., White Dudes) with excessive use of All-Caps:
Shall I continue in allegiance to GOD - AND A RELIGIOUS PRESIDENT; or impiously declare for JEFFERSON - AND NO GOD!
Thomas Jefferson - or, rather, James Callender (who is responsible for spilling the beans about Jefferson and Sally Hemings), a friendly newspaper editor, fired back by saying that Adams had a "hideous hermaphroditical character which as neither the force and firmness of a man, nor the gentleness and sensibility of a woman." Devastating. The election of 1800 is deserving of a separate post. Basically, Jefferson and his proposed vice president Aaron Burr tied in the electoral college. After some shenanigans from Aaron Burr, Alexander Hamilton convinced his fellow Federalists that it was better to give their vote to a Jefferson, who at least was somewhat consistent and seemed to believe in something, rather than Burr, the guy who (wait for it) "would do anything to get his hands on power."
By December 1800 Adams didn't know who would be president, but he knew it wouldn't be him. he was trying to find a new Chief Justice of the Supreme Court to replace Ellsworth. Congress was soon to debate reducing the number of Supreme Court Justices from the six that Washington had set to five, in order to avoid ties, and Adams thought it improper to nominate a sixth member of the Supreme Court while Congress was debating such a bill. He nominated Secretary of State John Marshall, mainly so that Jefferson wouldn't get to do it. The Senate wasn't happy, as it was a surprise nomination, but they didn't have much time before the Jefferson Administration was running the show, and figured that even a bad Federalist was still better than a Jeffersonian Republican. John Marshall was confirmed as Chief Justice on February 4, 1801. They still did not know who would be president, but for a month (the inauguration was then on March 4) Marshall served both as Adams' Secretary of State and Chief Justice of the Supreme Court.
On February 17, 1801 Jefferson prevailed over Burr on the 36th ballot. Burr would be Jefferson's vice president for the next four years which was likely extremely awkward. John Adams finished 3rd. He and his son John Quincy Adams would be the only one-term presidents until 1840.
While Adams peacefully left office after such a bitter campaign, he and the Federalists did do one thing that would eventually give the Supreme Court the power John Jay so desperately desired: they installed as many Federalist judges as they could until the day of Jefferson's inauguration, which Adams did not stay to attend, so as to place a check on the Jefferson Administration.
On March 2, 1801 - two days before Jefferson's inauguration - Adams submitted 42 judicial appointments to the Senate, which they confirmed on March 3, with Jefferson's inauguration on March 4. When Jefferson saw the commissions for these "Midnight Judges" (or Midnight Appointments) he told his Secretary of State (and future president) James Madison to simply not deliver the commissions to four of the intended judges. Later that month Jefferson wrote Henry Knox [edited for clarity]:
This outrage on decency shall not have its effect, except in the life appointments which are irremovable, but as to the others I consider the nominations as nullities & will not view the persons appointed as even candidates for their office, much less as possessing it by any title meriting respect.
One of these commission-rich but appointment-poor judges was named Stephon William Marbury, appointed to be the Justice of the Peace in Washington, D.C. When Marbury did not receive his commission, he appealed to the Supreme Court, led by...Chief Justice - and Adams' Secretary of State - John Marshall. Marbury v. Madison, which was handed down on February 24, 1803, is the first truly landmark case in Supreme Court history.
Marshall decided, through some actually brilliant legal analysis, that the Supreme Court's power was too narrow under the powers vested by the Constitution to decide the fate of Marbury's appointment. I'll turn it over to Kent State:
The Constitution, [Marshall] concluded, allowed the Supreme Court 'original jurisdiction' in only a limited number of specified situations, and they did not include the kind of order Marbury asked for. Since Marbury was only following the guidelines of a provision of the Judiciary Act of 1789, Marshall concluded that this provision was unconstitutional.
Jefferson was pissed, but Marshall's ruling didn't give anything for Jefferson to punch at, since the Court itself was refusing to grant the power under the Judiciary Act. Marbury v. Madison also established the precedent of Judicial Review - in which the Supreme Court now had the power to rule laws passed by Congress as unconstitutional.
In a clap-back by Jefferson's Republicans, they impeached Supreme Court Justice Samuel Chase in 1805 for politicizing his seat on the bench, "tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan," having continually referred to Jefferson and the Republicans as atheists. The Senate, which consisted of 25 Jeffersonian Republicans and nine Federalists, acquitted Chase - because being combative isn't necessarily treason - and he remained on the Supreme Court until his death in 1811. Regular reminder that successfully impeaching anyone is hard, and that's on purpose.
After Marbury v. Madison and the acquittal of Samuel Chase, finally the Supreme Court was on equal footing with the other branches of government. That was a very long aside, but it's important to know how the Supreme Court was elevated from a branch that Georgia could just drop like 3rd Period French to being the Scissors in Governmental Rock, Paper, Scissors.
Anyhow, the number of Supreme Court justices changed six times before 1869. One of those times was another lame-duck Adams/Federalist attempt to reduce the power of Jefferson with the Judiciary Act of 1801, which reduced the number of Supreme Court justices from six to five...beginning with the next vacancy meaning that Jefferson would have to wait for two vacancies before he could nominate a Republican. Petty af. That act was repealed almost immediately, returning the number of justices to six.
As the United States expanded west, however, it increased the number of circuit courts. In 1837 the number of district circuit courts were expanded, which resulted in Andrew Jackson nominating two additional Justices. By 1857 there were nine circuit courts, meaning there were nine Supreme Court Justices. Who establishes the number of these particular courts? Congress. In 1863 a 10th court was added to cover California/Oregon and, frustrated over Dred Scott v. Sandford, Lincoln added a 10th Supreme Court justice to ensure an anti-slavery majority. After Lincoln was assassinated and the extremely problematic Andrew Johnson had already vetoed the Civil Rights Act of 1866, Congress reduced the number of Supreme Court justices to seven in an effort to make sure he couldn't fill a vacant seat. With the passage of the Judiciary Act of 1869, the number of Supreme Court justices was increased from Johnson's seven back to nine, including one Chief Justice, as a gift to President Ulysses S. Grant. Nine Supreme Court Justices has been the number ever since, though there were some challenges.
By the 1930s the Supreme Court was extremely Republican, which wasn't exactly what President Franklin D. Roosevelt was looking for when he was trying to get New Deal legislation passed. Four of the nine members of the Supreme Court: Pierce Butler (confirmed 1922), James McReynolds (confirmed 1914), George Sutherland (confirmed 1922), and Willis Van Deventer (confirmed 1903) - straight-up hated the New Deal. Known as the Four Horsemen, they gained a majority when the Herbert Hoover-appointed Owen Roberts, in his Age 60 season was the youngest of that particular iteration of the Supreme Court, started to vote with the elder statesmen to make a conservative majority on the Court, started to invalidate key pieces of FDR's New Deal. Chief Justice Charles Evans Hughes was the Secretary of State for Republican presidents Warren G. Harding and Herbert Hoover, struck down an impressive amount of New Deal legislation - including a minimum wage for women and children, for God's sake.
Roosevelt was tired of it. Thanks to the vagaries of the Constitution he didn't need an amendment to change the composition of the Supreme Court but he did need Congress. The 75th Congress (1937-1939) enjoyed a Democratic super-majority thanks to the popularity of FDR and the New Deal. In February 1937, emboldened at the outset of a 2nd term as president, FDR proposed adding an additional Justice for any Supreme Court justice over the age of 70. That number, at the time, would bring six additional Justices to the Supreme Court - of his choosing - resulting in a Supreme Court of 15 members. This was FDR's infamous Court-Packing Scheme. Eventually FDR backed down after two justices upheld the National Labor Relations Act and the Social Security Act, but that was the last major effort to change the very structure of the Supreme Court.
I know we all like to think that this country is based on hallowed traditions, but one of those traditions is the petty tinkering with institutions based on how it benefits the party in power in that particular instance. That said, the precedent for an equal number of Supreme Court Justices for every district court has long been established. And right now? There are 12 regional circuits.
