Isabella Carter
The U.S. Constitution does not specify the size of the Supreme Court or the number of Justices. Instead, it assumes the existence of the office of the Chief Justice, as mentioned in Article I, Section 3, Clause 6. Article III, Section I of the Constitution states that the judicial power of the United States shall be vested in one Supreme Court, and that the judges shall hold their offices during good behaviour. While the Constitution establishes the Supreme Court, it permits Congress to decide how to organise it. Congress first exercised this power in the Judiciary Act of 1789, which set the number of Justices to six. The size of the court has been altered several times since then, ranging from five to ten Justices, before being fixed at nine in 1869, where it remains today.
| Characteristics | Values |
|---|---|
| Number of judges | The Constitution does not specify the number of judges. Congress can change the number of judges whenever it wants, but it has not been done in over 150 years. The number of judges was set to nine in 1869. |
| Jurisdiction | The Supreme Court has original jurisdiction over certain cases, such as suits between two or more states and cases involving ambassadors and other public ministers. It has appellate jurisdiction on almost any other case that involves a point of constitutional and/or federal law. |
| Appointment of judges | The President nominates and appoints judges of the Supreme Court, with the advice and consent of the Senate. |
| Judicial review | The Supreme Court has the power of judicial review, or the ability to declare a Legislative or Executive act in violation of the Constitution. |
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What You'll Learn
The US Constitution does not specify the number of Supreme Court justices
The US Constitution does not specify the number of justices that should sit on the Supreme Court. Article III, Section I of the Constitution states that "the judicial power of the United States shall be vested in one Supreme Court," but it does not mention the specific number of justices. The power to define the size and membership of the Supreme Court has been assumed to belong to Congress, which initially established a six-member Supreme Court through the Judiciary Act of 1789. This Act created a Supreme Court with one Chief Justice and five Associate Justices.
Over the years, the number of seats on the Supreme Court has changed several times. During the Civil War, the number of justices was increased to as many as ten. In 1869, Congress settled on the current number of nine justices, consisting of one Chief Justice and eight Associate Justices. While there have been discussions and proposals to add more justices to the Supreme Court, the number has remained at nine for over 150 years.
The process of appointing justices to the Supreme Court involves the President nominating individuals, who are then subject to Senate confirmation. The Appointments Clause in the Constitution outlines this process, stating that the President shall appoint judges of the Supreme Court "by and with the Advice and Consent of the Senate." Open hearings over Supreme Court nominations began in the 20th century, with the first nominee appearing before the Senate Judiciary Committee in 1916.
The Supreme Court's power of judicial review, or the ability to declare a Legislative or Executive act in violation of the Constitution, is not explicitly mentioned in the text of the Constitution. However, the Court established this doctrine in the case of Marbury v. Madison in 1803. The Court's decision in this case affirmed that the Constitution is the supreme law of the land and that any Act of Congress contrary to it is invalid.
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Congress can change the number of justices
The U.S. Constitution does not specify the size of the Supreme Court or the number of justices that should sit on it. Article III, Section I of the Constitution states that "the judicial power of the United States shall be vested in one Supreme Court," but it does not mention a specific number of justices. The power to define the Supreme Court's size and membership has been assumed to belong to Congress, which initially established a six-member Supreme Court through the Judiciary Act of 1789.
Over the years, Congress has altered the number of seats on the Supreme Court through various Acts. The size of the court was first changed by the Midnight Judges Act of 1801, which would have reduced the number of justices to five. However, the Judiciary Act of 1802 was quickly passed to restore the court's size to six members. During the Civil War, the number of justices was raised to as many as ten. In 1869, Congress settled on the current number of nine justices, which has remained unchanged for over 150 years.
The process of appointing justices to the Supreme Court involves the President nominating individuals, who are then subject to Senate confirmation. The Appointments Clause in the Constitution outlines this process, stating that the President shall appoint judges of the Supreme Court with the "Advice and Consent of the Senate." The shift in party control of the Senate and public opinion of the President can impact the type of nominee and the confirmation process.
While Congress has the power to change the number of justices, it has not been exercised in recent times. In 2021, some Democratic leaders proposed adding four new justices to the bench, increasing the number to 13. However, this proposal did not gain traction. The idea of changing the number of justices on the Supreme Court, often referred to as "court-packing," remains a controversial topic.
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The President appoints Supreme Court justices
The President nominates and appoints Supreme Court justices with the "advice and consent" of the Senate. This means that the President's nominees must be confirmed by the Senate, which can dramatically alter the type of nominees a President can expect to be confirmed. For example, a President with strong approval ratings may find it easier to achieve confirmation for a Justice or have broader leeway in the type of Justice they nominate.
The President's nominees may be called to appear before the Senate Judiciary Committee, as was the case with Harlan Fiske Stone in 1925, Felix Frankfurter in 1939, and Louis Brandeis in 1916. Brandeis' hearing was quite contentious and lasted for months. In 1987, Douglas Ginsburg withdrew his nomination before a formal hearing was conducted. Merrick Garland was nominated in 2016 but was not given a hearing in the Senate.
The Constitution does not specify the number of justices that should sit on the Supreme Court. The Judiciary Act of 1789 set the number of justices to six, and during the Civil War, this number was raised to ten. In 1869, Congress settled on nine justices—one Chief Justice and eight Associate Justices. While Congress has the power to change the number of justices, it has not done so in over 150 years.
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The Senate confirms Supreme Court appointments
The Constitution of the United States establishes the Supreme Court and permits Congress to decide how to organise it. The Appointments Clause of the Constitution states that the President shall appoint, subject to Senate confirmation, Judges of the Supreme Court. The President nominates, and by and with the advice and consent of the Senate, appoints Judges of the Supreme Court.
The Senate's confirmation of Supreme Court appointments involves a range of considerations, including political factors, the nominee's judicial philosophy, fitness for the bench, past statements on relevant issues, and the balance of power between political factions. The timing of a Supreme Court vacancy can also impact the type of candidate considered and prominent legal issues facing the country at the time. For example, in 2016, Merrick Garland was nominated by President Barack Obama but did not receive a hearing or vote in the Republican-controlled Senate. The Senate refused to consider the nomination until after the upcoming election.
The Senate's role in the confirmation process has been a consistent feature since the nation's early history. Nominees to the Supreme Court have been accepted or rejected on political grounds, as seen in the case of President George Washington's choice to replace the first Chief Justice, which was rejected due to largely political considerations.
The confirmation process includes a debate phase, after which the Senate votes on the nomination. A simple majority of the present and voting Senators is required for confirmation, and in the case of a tie, the Vice President, who also presides over the Senate, casts the deciding vote. This process is outlined in resources such as the Georgetown Law Library's "Nomination & Confirmation Process – Supreme Court Nominations Research Guide".
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Public opinion of the President can shape the type of nominee
The US Constitution establishes the Supreme Court and permits Congress to decide how to organise it. While the Constitution does not explicitly state the number of seats on the Supreme Court, it does give Congress the power to alter the number. Over the years, the number of seats has varied from five to ten. Today, there are nine Justices on the Court, including one Chief Justice and eight Associate Justices.
The President's choice of nominee may also depend on the political leanings of the Justice being replaced. If the Justice is considered a swing vote, the President may be limited to moderate nominees. On the other hand, if the Justice represents a strong ideological position, the President may need to nominate someone who appeals strongly to that side.
Public opinion can also influence the role of interest groups in the nomination process. For example, in the case of President Ronald Reagan's nomination of Robert Bork, opposition from labour and civil rights groups was significant enough to prompt the formation of conservative groups aiming to counter the influence of liberal interest organisations in judicial nominations.
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Frequently asked questions
Yes, the Constitution does allow for adding Supreme Court judges. However, this has not been done in over 150 years. The Constitution does not specify the exact number of justices that should sit on the Supreme Court.
The President nominates and appoints the judges of the Supreme Court, with the advice and consent of the Senate.
There are currently nine Supreme Court justices, including one Chief Justice and eight Associate Justices.
No, the number of Supreme Court justices has changed over time. The First Judiciary Act of 1789 initially set the number of justices to six. During the Civil War, the number was increased to as many as ten justices. In 1869, Congress fixed the number of justices to nine, which has been the standard since then.
Yes, in theory, the number of Supreme Court justices can be reduced. The Midnight Judges Act of 1801 would have reduced the size of the court to five members upon its next vacancy, but this was promptly negated by the Judiciary Act of 1802, which restored the court's size to six members.
