Article III, Section 1:

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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The Constitution provides for a Judicial Branch including “one supreme Court.” 1 It also appears to assume that the Supreme Court will include a Chief Justice, stipulating that “the Chief Justice shall preside” over any Presidential impeachment trial in the Senate.2 However, the Constitution is silent on other matters such as the size and composition of the Supreme Court, the time and place for sitting, and the Court’s internal organization, leaving those questions to Congress.

Congress first enacted legislation to structure the Supreme Court in the Judiciary Act of 1789.3 Under the 1789 act, the Court comprised one Chief Justice and five Associate Justices.4 Congress enacted legislation to change the size of the Court multiple times during the nineteenth century. In 1801, Congress reduced the size of the Court to five Justices. The 1801 statute did not eliminate an occupied seat on the Court; instead, it provided that the change would take effect “after the next vacancy.” 5 Congress repealed the 1801 law before any vacancy occurred, leaving the size of the Court at six Justices.6

In the early years of the Republic, Supreme Court Justices were required to “ride circuit,” spending part of their time hearing Supreme Court cases in the capital and part of each year traveling to hear cases in the lower federal circuit courts.7 For a time during the 1800s, the number of Supreme Court Justices tracked the number of judicial circuits, facilitating the division of circuit-riding duties.8 At its largest, during the Civil War, the Court had ten Justices, with the addition of the tenth seat on the Court coinciding with the establishment of the Tenth Circuit.9 In 1866, Congress reduced the size of the Court to seven Justices, a change widely viewed as one of the Reconstruction Congress’s restrictions on President Andrew Johnson.10 In 1869, under a new presidential administration, Congress expanded the Court to include nine Justices.11 The 1869 legislation was the last time Congress changed the size of the Supreme Court.

A notable unsuccessful attempt to enlarge the Court occurred in 1937, when President Franklin Delano Roosevelt’s Administration proposed court expansion legislation that many regarded as an effort to make the Court more favorable to President Roosevelt’s New Deal policies.12 Congress declined to act on the proposal, with the Senate Judiciary Committee expressing concerns that it impermissibly infringed on the principle of judicial independence enshrined in Article III of the Constitution.13 Proposals related to Supreme Court expansion also emerged following the death of Justice Ruth Bader Ginsburg and the confirmation of Justice Amy Coney Barrett in the weeks leading up to the 2020 presidential election.14 While no provision of the Constitution expressly prohibits legislative changes to the size of the Supreme Court, and Congress has changed the size of the Court multiple times in the past, some commentators debated whether the proposals were inconsistent with constitutional norms. The proposals were not enacted, and the Supreme Court has had no occasion to consider their constitutionality.

Proposals have been made at various times to organize the Court into sections or divisions. No authoritative judicial analysis of those proposals is available, but Chief Justice Charles Evans Hughes, in a letter to Senator Burton Wheeler in 1937, expressed doubts concerning the validity of such a device and stated that “the Constitution does not appear to authorize two or more Supreme Courts functioning in effect as separate courts.” 15 Other proposals would alter the size of the Court while also changing the Court’s structure or composition, for example by seeking to impose partisan balance on the Court.16 As with the foregoing proposals, the Supreme Court has not considered the constitutionality of these proposals.

In addition to setting the size of the Supreme Court, Congress also determines the time and place of the Court’s sessions. Congress once exercised that power to change the Court’s term to forestall a constitutional attack on the repeal of the Judiciary Act of 1801, with the result that the Court did not convene for fourteen months.17 Congress also has significant authority to determine what cases the Court has jurisdiction to hear. The Constitution grants the Supreme Court original jurisdiction over the relatively narrow categories of “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,” 18 and the Court has held that its jurisdiction over such cases flows directly from the Constitution.19 In “all the other Cases” subject to federal jurisdiction, Article III grants the Court “appellate Jurisdiction . . . with such Exceptions, and under such Regulations as the Congress shall make.” 20 Supreme Court decisions establish that the Exceptions Clause grants Congress broad power to regulate the Court’s appellate jurisdiction.21

Footnotes

1

U.S. Const. art. III, § 1.

2

U.S. Const. art. I, § 3, cl. 6.

3

Act of September 24, 1789, 1 Stat. 73. For additional discussion of the Act and its working and amendments, see Frankfurter & Landis, The Business of the Supreme Court (1928); Charles Warren, New Light on the History of the Federal Judicial Act of 1789, 37 Harv. L. Rev. 49 (1923); see also Julius Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States (1971).

4

Act of September 24, 1789, 1 Stat. 73, § 1.

5

Judiciary Act of 1801, ch. 4, § 3, 2 Stat. 89, 89.

6

Act of Mar. 8, 1802, ch. 8, § 1, 2 Stat. 132.

7

The Supreme Court rejected a constitutional challenge to circuit riding in Stuart v. Laird, 5 U.S. (1 Cr.) 299 (1803). A party challenging the practice argued that Supreme Court justices “have no right to sit as circuit judges, not being appointed as such, or in other words, that they ought to have distinct commissions for that purpose.” The Court noted that the objection was “of recent date,” and could not overcome “practice and acquiescence . . . for a period of several years, commencing with the organization of the judicial system,” which yielded an “irresistible answer” that circuit riding was constitutional. Id. at 309.

8

See, e.g., Act of Feb. 24, 1807, ch. 16, § 5, 2 Stat. 420 (creating the Seventh Circuit and adding a seventh seat to the Supreme Court); Act of Mar. 3, 1837, ch. 34, § 1, 5 Stat. 176 (creating the Eighth and Ninth Circuits and increasing the size of the Supreme Court to nine Justices).

9

Act of Mar. 3, 1863, ch. 100, 12 Stat. 794.

10

Act of July 23, 1866, ch. 210, 14 Stat. 209. Like the 1801 legislation, the 1866 law provided that the Court would decrease in size as vacancies arose rather than eliminating any occupied seats on the bench. The number of Justices did not fall below eight before the end of Johnson’s term. The 1866 legislation decoupled the number of judicial circuits from the number of Supreme Court Justices, and since that time there have usually been fewer seats on the Court than judicial circuits.

11

Act of April 10, 1869, ch. 22, 16 Stat. 44.

12

Judicial Procedures Reform Bill of 1937, S. 1392 (75th Cong. 1937).

13

Reorganization of the Federal Judiciary, S. Rep. No. 75–711, at 20–23 (1937). The Roosevelt Administration eventually abandoned the plan after the Supreme Court began to vote to uphold New Deal legislation. See West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

14

See, e.g., Judiciary Act of 2021, S. 1141, H.R. 2584 (117th Cong. 2021).

15

Reorganization of the Judiciary: Hearings on S. 1392 Before the S. Judiciary Comm., 75th Cong. (1937), pt. 3, 491. For earlier proposals to have the Court sit in divisions, see Frankfurter & Landis, supra note 3, at 74–85.

16

See Eric J. Segall, Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, 45 Pepp. L. Rev. 547 (2018); Ganesh Sitaraman and Daniel Epps, How to Save the Supreme Court, 129 Yale L. J. 148 (2019).

17

1 Charles Warren, The Supreme Court in United States History 222–224 (rev. ed. 1926).

18

U.S. Const. art III, § 2, cl. 2.

19

See ArtIII.S2.C2.2 Supreme Court Original Jurisdiction.

20

U.S. Const. art III, § 2, cl. 2.

21

See ArtIII.S2.C2.6 Exceptions Clause and Congressional Control over Appellate Jurisdiction.