The Constitutional Court: Membership And Its Significance

A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional. The number of members of a constitutional court varies from country to country. For example, the US Supreme Court has nine members, while the Federal Constitutional Court in Germany has 16 judges and two senates.

Explore related products

The Court of Justice of the Economic Community of West African States As a Constitutional Court: Member States Obligations Resulting from the Court's Rulings

$40 $106

American Constitutional Law: Introductory Essays and Selected Cases

$153.59 $180

American Constitutional Law: Introductory Essays and Selected Cases

$140

Methods of Interpretation: How the Supreme Court Reads the Constitution

$121 $165

The American Constitutional Experience: Selected Readings and Supreme Court Opinions

$125.2

The Supreme Court's Federal Tax Jurisprudence, Second Edition

$155

The US Supreme Court currently has nine members

The US Supreme Court is the highest court in the country and currently has nine members: one Chief Justice and eight Associate Justices. The US Constitution does not specify the size of the Supreme Court or the positions of its members. Instead, the Constitution grants Congress the power to determine the number of justices. Over the years, this number has ranged from five to ten, but since 1869, it has been set at nine.

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 also has appellate jurisdiction, which means it can hear almost any case on appeal that involves a point of constitutional or federal law. The Court's most well-known power is judicial review, or the ability to declare a Legislative or Executive act in violation of the Constitution.

The Supreme Court's term commences on the first Monday of October and continues until June or early July of the following year. Each term consists of alternating periods of "sittings" and "recesses". Justices hear cases and deliver rulings during sittings and discuss cases and write opinions during recesses.

The Supreme Court's power and prestige grew substantially during the Marshall Court (1801–1835). Under Marshall, the Court established the power of judicial review over acts of Congress, including specifying itself as the supreme expositor of the Constitution.

Six was the initial number of members

The number of members in the Supreme Court has been politically manipulated over the years and has ranged from five to ten. The U.S. Constitution grants Congress the power to determine the number of justices on the Supreme Court. The Judiciary Act of 1789 established the first Supreme Court, which initially consisted of six justices: one chief justice and five associate justices.

Under chief justices Jay, Rutledge, and Ellsworth (1789–1801), the court heard few cases. Its first decision was West v. Barnes (1791), a case involving procedure. As the court initially had only six members, every decision that it made by a majority was also made by two-thirds (voting four to two). Congress has always allowed less than the court's full membership to make decisions, starting with a quorum of four justices in 1789.

In 1801, President John Adams and a lame-duck Federalist Congress passed the Judiciary Act of 1801, which reduced the Court to five justices in an attempt to limit incoming President Thomas Jefferson's appointments to the high bench. However, Jefferson and his Republicans soon repealed that act, restoring the Court to six justices. In 1807, Jefferson and Congress added a seventh justice when they added a seventh federal court circuit.

The number of justices on the Supreme Court has been nine since 1869.

Congress has the power to decide on the number of members

The U.S. Constitution grants Congress the power to determine the number of justices on the Supreme Court. This number has changed over time, ranging from five to ten, but since 1869, it has been set at nine—one chief justice and eight associate justices.

The Constitution itself does not specify the size of the Supreme Court or the specific positions of its members. Instead, it assumes the existence of the office of the chief justice, as mentioned in Article I, Section 3, Clause 6, which states that "the Chief Justice" must preside over impeachment trials of the President of the United States.

Congress first established a six-member Supreme Court through the Judiciary Act of 1789, composed of a chief justice and five associate justices. Over the years, Congress has altered the size of the court through various acts. For example, in 1801, the Midnight Judges Act would have reduced the court to five members upon its next vacancy, but this was promptly negated by the Judiciary Act of 1802.

The number of justices on the Supreme Court has been subject to political manipulation. For instance, in 1866, Congress passed legislation to decrease the number of judges from ten to seven to limit incoming President Thomas Jefferson's appointments. Similarly, in 1937, President Franklin Roosevelt supported a Judicial Procedures Reform Bill to add up to six new justices to align with his policies, but this effort failed.

Explore related products

Protect Your People: How Ordinary Families Are Using Participatory Defense to Challenge Mass Incarceration

$9.99 $17.99

Constitutional Diplomacy

$88.35 $93

Federal Constitutional Law: Introduction to Interpretive Methods and Federal Judicial Power, (Volume 1) (2015) (Modular Casebook)

$39.99

State Rights and the Appellate Jurisdiction of the Supreme Court of the United States : a Constitutional Argument by a Member of the Rock County Bar 1860 [Leather Bound]

$17.75

The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (Discourses of Law)

$37.96 $54.99

The Future of the International Criminal Court

$151.15 $180

The Austrian System is a model for constitutional courts

The Austrian Constitutional Court is composed of fourteen constitutional judges: a president, a vice-president, and twelve further members, along with six substitute members who fill in for absent regular members. The members of the Court are appointed by the Federal President, with the Federal Government nominating the president and vice-president, six constitutional judges, and three substitute members. The remaining six members and three substitutes are nominated by the National Council and the Federal Council. The Court rarely meets in plenum and most cases are decided behind closed doors by panels of nine or five members.

The Austrian Constitutional Court's main functions include verifying the constitutionality of statutes, the legality of ordinances, and other secondary legislation, as well as the constitutionality of decisions made by other courts. It also decides on conflicts between courts, between courts and the public administration, and between federal and state bodies. The Court examines the validity of some elections and decides on the loss of seats in the National and Federal Councils. It also rules on liability claims against Austria and its bureaucracy and holds elected officials and appointees accountable for their conduct in office.

The Austrian system is designed to ensure the Court's independence from political actors and to promote pluralism on the bench. The framers of the 1920 Constitution did not want the Court to be dominated by professional judges, instead prioritising members with diverse professional backgrounds. The Court includes judges, university professors, civil servants, and lawyers. Members can continue their other professions while serving on the Court, contributing their specific expertise to its work. This pluralism is further enhanced by specific eligibility criteria that allow for a wider pool of candidates, such as attorneys, professors, and civil servants.

The Austrian Constitutional Court, with its emphasis on independence and pluralism, has influenced the design of constitutional courts worldwide. Its institutional features, such as the selection of judges from diverse backgrounds and the allowance for members to hold other occupations, have shaped the development of constitutional courts in other nations.

The Constitutional Court of Berlin is an example of a state constitutional court (others exist)

The Constitutional Court of Berlin is an example of a state constitutional court, with its seat at the Kammergericht building in the Schöneberg district of Berlin. It is composed of nine judges, including its president and vice-president, with three of them being professional judges and three others being qualified to hold judicial office. All judges are elected by the Abgeordnetenhaus of Berlin with a two-thirds majority for a seven-year term without the possibility of re-election. The court is mainly responsible for deciding on constitutional complaints, Organstreit proceedings, and abstract judicial review of statutes.

The Constitutional Court of Berlin is not the only state constitutional court in Germany. Each of the Länder has its own state constitutional court, such as the Constitutional Court of Saxony. These courts are administratively independent and financially autonomous from any other government body. They are directly authorized by the Basic Law for the Federal Republic of Germany, which is the country's highest source of law.

The Federal Constitutional Court, on the other hand, is the supreme constitutional court established by the constitution or Basic Law of Germany. It is headquartered in Karlsruhe, Baden-Württemberg, and began sitting in 1951. The court has a heavy workload, handling around 5,000 cases annually. It is not an appeals court but a trial court with first and final competence, and its decisions are binding on state and federal legislatures and all other courts.

The Federal Constitutional Court has two separate panels, each consisting of eight judges with jurisdiction over distinct areas of constitutional law. The judges are elected by the Bundesrat (the upper house of the German legislature) and serve a single, non-renewable 12-year term. The court hears complaints regarding violations of law or civil rights in the conduct of elections, with eligible voters or groups of voters able to raise complaints within two months of the election if they were previously rejected by the Bundestag.

Frequently asked questions