Why are there 9 Supreme Court Justices? (And why have a Supreme Court at all?)


With the Supreme Court ending its 2007-08 term last week, we thought now was a good time to answer some questions you probably weren't asking (but will nonetheless find interesting). The honorable David Holzel is presiding.

Why are there 9 Supremes?
There don't have to be—the Constitution doesn't specify—and there weren't always. The Federal Judiciary Act called for a chief justice and five associate justices. And the Court didn't settle into the current lineup of eight associates and a chief until the late 1860s.

A sixth associate was added in 1807, a seventh and eighth in 1837, and a ninth in 1863. Congress sought to restructure the Court during the contentious administration of Andrew Johnson, Abraham Lincoln's controversial successor. A law passed in 1866 called for a decrease in the number of associate justices from nine to six through the process of attrition. Seven associates still remained on the bench in 1869, when a law was passed to increase the number back to eight. By that time President Ulysses S. Grant had taken office.

That's how things stood until 1935, when a largely conservative Court unanimously overturned three of President Franklin D. Roosevelt's New Deal provisions. Roosevelt was reelected by a landslide the next year. So in 1937, he invested his political capital in making the court more liberal and, presumably, more enthusiastic about the New Deal.

Roosevelt proposed the "Judiciary Reorganization Bill of 1937" -- known ever since as "the Court-packing scheme." The Supreme Court would add one justice for every sitting justice over age 70. Roosevelt argued that the Court, with its six septuagenarians, wasn't up to the job. (In the current Court, six justices will be at least 70 by the end of 2008.)

The plan caused an uproar, even among Roosevelt's allies and, with the president refusing to give in, eventually died in Congress.

Is there a Jewish seat? An African-American seat?
The story goes that when Louis D. Brandeis sat on the Court, a fellow justice refused to sit in the same room with him. Brandeis was the Court's first Jewish justice, nominated by President Woodrow Wilson in 1916. From that time, until Justice Abe Fortas resigned from the bench in 1969, presidents always made sure there was at least one Jewish justice.

Similarly, after the retirement in 1991 of Thurgood Marshall, the first African-American justice, President George H.W. Bush nominated another African American to fill his seat—albeit the more conservative Clarence Thomas.

One reason President George W. Bush nominated Harriet Meiers was to have a woman succeed the retiring Sandra Day O'Connor, says Barbara A. Perry, professor of government at Sweet Briar College, in Virginia. Perry, author of A "Representative" Supreme Court? The Impact of Race, Religion, and Gender on Appointments, tells mental_floss that since the time of George Washington, presidents have sought "balancing representation" in their nominations.

"It was geographical balance then," Perry says. "Later, religious seats developed." And more recently, a seat for a woman and an African-American. To extend representation, "Bush really wanted to make Alberto Gonzales the first Hispanic justice." (Gonzales resigned as attorney general over the firings of federal prosecutors.)

"But once a group enters the mainstream, presidents feel less compelled to reach out to them. The other way you know is if members of a group fill multiple seats." In 1956, President Dwight D. Eisenhower nominated William Brennan, to ensure a Roman Catholic on the Court; today, of nine justices, seven are Catholics, including the chief justice. Another two are Jews.

Why is there a Supreme Court, anyway?
First, because the United States Constitution says so. Article III called for Congress to create a Supreme Court. But that doesn't entirely answer the question. The framers of the Constitution considered the lack of a high court as one of the chief weaknesses of the Articles of Confederation, which the Constitution was intended to replace.

"All nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice," Alexander Hamilton argued in support of a court that would be a co-equal branch of government with Congress and the presidency.

Unlike the limited terms assigned to officers of the other branches of government, Article III says the members of the Supreme Court "shall hold their Offices during good Behaviour"—essentially until they resign or die. It describes the Court's jurisdiction extending to "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority."

It took the Federal Judiciary Act of 1789 to bring the Supreme Court and federal district courts into existence. The Court's first session opened on Feb. 2, 1790, but the justices heard no arguments during their first three sessions. The Court didn't issue its first major decision until 1793 when, in Chisholm v. Georgia, it ruled the state of Georgia was not immune to a lawsuit from a citizen of another state. That decision was overturned by the 11th Amendment, ratified in 1795.

During their long periods of down time, the early justices were occupied with riding the muddy roads of the country, settling cases as circuit judges. Sitting on a circuit court is still part of a justice's job description.

How does the Supreme Court enforce its decisions?
On its own, it can't. With no army to back it up and dour expressions not being enough to ensure compliance, the Court must rely on the executive branch for support.

This was a big selling point when the Constitution was being shopped around in 1787. The judiciary, Alexander Hamilton wrote, "has no influence over either the sword or the purse"¦. It may truly be said to have neither FORCE nor WILL, but merely judgment." The Court, Hamilton said, would be "the least dangerous" branch of government.

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There seem to be several ways to pronounce the archaic "oyez"—roughly meaning, "Hear ye!" After giving this call for silence, the marshal of the court announces: "All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this honorable court."

By law, the Supreme Court will begin its next term the first Monday in October.

Monday: What was Marbury v. Madison? And who were Roe & Wade? Tuesday: 8 Rejected Supreme Court Justices.

David Holzel is a freelance writer and has never said the word "oyez" out loud. He writes the ezine The Jewish Angle.
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