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Why are there nine justices on the Supreme Court?

Jan 25, 2021, 6:40 PM | Updated: Apr 15, 2021, 7:31 am
religious freedom COVID-1...
FILE - In this May 3, 2020, file photo, the setting sun shines on the Supreme Court building in Washington. As coronavirus cases surge again nationwide, the Supreme Court late Wednesday, Nov. 25, temporarily barred New York from enforcing certain attendance limits at houses of worship in areas designated as hard hit by the virus. The court’s action won’t have any immediate impact since the two groups that sued as a result of the restrictions, the Catholic church and Orthodox Jewish synagogues, are no longer subject to them. (AP Photo/Patrick Semansky, File)
(AP Photo/Patrick Semansky, File)

SALT LAKE CITY — Why have there always been nine justices on the US Supreme Court? Why can’t there be more or fewer justices? Answer: It hasn’t and it can.

Sen. Mitt Romney, R-Utah,  joined 1o other Republican senators on Monday who support amending the US Constitution to limit the number of justices appointed to the Supreme Court to nine, where it was stood since 1869.

“Packing the Supreme Court is a radical, left-wing idea that would further undermine America’s confidence in our institutions and our democracy,” said Sen. Marco Rubio, R-Fla. Rubio reintroduced the proposal, which was first introduced in March 2019.

“Last Congress, we proposed this amendment, which would maintain the number of seats on Supreme Court at nine. It remains imperative that we continue to resist efforts to pack the Supreme Court and treat it as if it is one of the elected branches of government,” Romney said, according to reporting from KSL.

“Our society is only as strong as its institutions, and I hope my colleagues will join us in our effort to ensure the integrity and independence of the Supreme Court,” the Utah senator added.

Also joining the push to amend the Constitution were Sens. Kevin Cramer, R-ND, Marsha Blackburn, R-Tenn., Todd Young, R-Ind., Mike Crapo, R-Idaho, Pat Toomey, R-Penn. and Shelley Moore Capito, R-WVa.

But the US Constitution is silent on exactly how many justices may serve at one time. Deciding the number once and for all will need to be determined through Congress by way of a constitutional amendment.

To amend the Constitution, the proposal must pass by two-thirds majorities in both chambers of Congress and be ratified by three-fourths of the states. And Democrats now control both the Senate and House and the White House.

Dems call for rebalancing the top court

After Republican lawmakers rushed last fall to confirm President Donald Trump’s nominee, Amy Coney Barrett, to the Supreme Court, many Democrats were pushing Congress to add more justices to remedy what they saw as a packing of today’s 6-3 conservative court.

“[W]e’ve got to have a wide-open conversation about how do we rebalance our courts … Because we’ve seen hundreds of conservative judges put on circuit courts and district courts all over this country in the last four years, in many cases, too young, too unqualified, and too far right to be allowed to sit peaceably without our re-examining the process, the results and the consequences,” said Sen. Chris Coons, D-Del., in October, according to New York Post.

But Republicans might get some help from some Democrats in their push to permanently settle, once and for all, the number of justices on the Supreme Court at nine.

Independent Vermont Sen. Bernie Sanders opposed the idea of packing the Supreme Court on the 2020 campaign trail, saying it would result in presidents continuing to add more justices until the court is sent into a death spiral.

“We add two more judges. The next guy comes in — maybe a Republican — somebody comes in, you have two more,” and before you know it, he said, “you have 87 members of the Supreme Court. And I think that de-legitimizes the Court,” he said according to Vox.

President Joe Biden, who while campaigning had avoided comment on Democratic calls to increase the number of Supreme Court justices, now says he would appoint a special commission to study that and other “reform” issues regarding the judicial system.

“I will ask them to — over 180 days — come back to me with recommendations as to how to reform the court system because it’s getting out of whack,” Biden, then the Democratic presidential nominee, told “60 Minutes” during an interview, USA TODAY reported Oct. 22.

A history of justices on the Supreme Court

The number of justices on the Supreme Court has changed at least six times since the nation’s founding.

In 1789, President George Washington established the number of justices at six. Back then, justices were also appointed to sit on federal circuit courts — and there were 13 in 1789, one for each state.

The circuit courts were divided into three regions: Eastern, Middle and Southern, so that two of the six justices during Washington’s term could preside in each of the three regions.

“The justices had to spend almost the entire year traveling,” said Maeva Marcus, a research professor at the George Washington University Law School and director of its Institute for Constitutional History. “And the traveling conditions were horrendous,” she told History.com.

But what happened in the event of a 3-3 tie?

“They never even thought about it because all the judges were Federalists, and they didn’t foresee great disagreement,” said Marcus. “Plus, you didn’t always have all six justices appearing at the Supreme Court for health and travel reasons.” 

To prevent a tie vote, Congress increased the number of justices to seven in 1807.

But 30 years later in 1837, the number of justices increased to nine.

During President Abraham Lincoln’s term in 1863, the number rose to 10.

In 1866, a year after Lincoln’s assassination, Congress passed the Judicial Circuits Act, which shrank the number of justices back down to seven and prevented President Andrew Johnson from appointing a new justice to the court. Then in 1869, Congress raised the number back to nine, where it has been ever since.

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Why are there nine justices on the Supreme Court?