The structure doesn"t stipulate how plenty of justices need to serve top top the Court—in fact, the number fluctuated till 1869.

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Only because 1869 have actually there repetitively been nine justices appointed come the can be fried Court. Prior to that, congress routinely changed the variety of justices to accomplish its very own partisan political goals, leading to as couple of as 5 Supreme Court justices forced by regulation under john Adams to as numerous as 10 under Abraham Lincoln.

The U.S. Constitution is silent about how many justices have to sit on the supreme Court. In fact, the office of chef Justice just exists since it’s discussed in the constitution under Senate rules because that impeachment proceedings (“When the chairman of the United states is tried, the chief Justice chandelier preside...”).

It’s Congress, not the Constitution, that decides the size of the supreme Court, which the did for the an initial time under the Judiciary act of 1789. When George Washington signed the Act into law, he collection the number of Supreme Court judge at six.

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Split decision Were much less of a Concern 

Why six? because Supreme Court judge in those work were additionally appointed come sit on commonwealth circuit courts, of which there to be 13 in 1789. Each circuit court would be presided end by three judges: one ar court judge from the state and also two supreme Court justices.

“The justices had to spend nearly the whole year traveling,” says Maeva Marcus, a research study professor at the George Washington University law School and director of its Institute for Constitutional “And the traveling conditions were horrendous.”

To limit the geographical area travel by the justices, the Judiciary act of 1789 divided the circuit courts right into three regions: Eastern, Middle and Southern. The reason that the very first Supreme Court had six justices to be simple—so that two of them could preside in every of the three regions.

Marcus said that nobody at the time quibbled about the fact that 6 is an also number, i m sorry leaves open up the possibility of 3-3 break-up decisions.

“They never also thought about it, due to the fact that all the judges were Federalists and also they didn’t foresee good disagreement,” states Marcus. “Plus, girlfriend didn’t always have all 6 justices appearing at the supreme Court for health and travel reasons.”

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Adams Shrinks the Court to Snub Jefferson

The Federalist's tight on power didn’t last, however, prompting the very first political conflict over supreme Court nominations. In 1800, incumbent man Adams, a Federalist, shed the presidential choice to cutting board Jefferson and also the Democratic-Republicans.


Cartoon of chairman Franklin D. Roosevelt's 1937 can be fried Court pack plan and also opposition to it, illustrated by J.N. "Ding" Darling.

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In the 1930s, the supreme Court approve a series of rulings the undercut some of Franklin D. Roosevelt’s new Deal legislation. FDR and also his Justice department responded with a proposed invoice that would certainly have permitted him to name six new Supreme Court justices to reach a grand total of 15.

Under the propose legislation, all sitting justices older 보다 70 would certainly be asked come resign. If any kind of of castle refused, FDR would be allowed to nominate secondary justice come the bench. Due to the fact that six that the nine justices at the moment were older than 70, that developed the possibility of six brand-new seats top top the can be fried Court.

FDR’s plan, decried as “packing the court” with his political supporters, to be shot under in the Senate through a vote of 70-20. 

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Dave Roos is a freelance writer based in the joined States and Mexico. A longtime contributor come HowStuffWorks, Dave has also been released in The brand-new York Times, the Los Angeles Times and Newsweek.

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