Academic journal article
By Orth, John V.
Constitutional Commentary , Vol. 19, No. 3
How many judges does it take to make a supreme court? Three? Five? Seven? Nine? Or more? If state as well as federal courts are considered, all answers have been correct at one time or another, in one court or another. State constitutions sometimes set the number of judges; sometimes, like the U.S. Constitution, they leave it to the legislature to decide. (1) The size of a court is usually determined by more or less objective considerations, such as the cost of the judicial establishment, the size of the caseload, or the existence of other judicial duties such as circuit-riding, but occasionally in notorious cases the number of judges is increased or decreased to serve partisan purposes. "We are under a Constitution," Charles Evans Hughes once remarked off-the-cuff and to his everlasting regret, "but the Constitution is what the judges say it is." (2) As the politicians are well aware, sometimes it matters not just who the judges are but how many there are.
Ever since the Judiciary Act of 1869 (3) the authorized strength of the United States Supreme Court has remained at nine. So long accustomed to that number have we become that it seems just about perfect--not too large, not too small. State supreme courts tend not to exceed the federal number. With larger caseloads but smaller jurisdictional areas, they typically function today with nine, seven, or five judges.
Although the size of the U.S. Supreme Court has remained constant since 1869, the status quo was memorably challenged in 1937, when President Franklin Roosevelt proposed his Court Reform Bill, better known as the "court-packing plan," designed to secure a majority of justices to uphold the government's economic program. (4) Authorizing the president to appoint one new justice for every sitting justice over the age of seventy, the bill provided for a maximum complement of as many as fifteen judges. (5) Never adopted, the proposal foundered on a public consensus that it would have too obviously politicized the judicial branch. In any event, a majority of the sitting justices rather suddenly coalesced in support of the president's program, the so-called "switch in time that saved nine." (6)
For the first century of American history the number of U.S. Supreme Court justices was closely tied to the number of federal judicial circuits. The connection was forged by the original judiciary act in 1789, which created the federal judicial system of district and circuit courts, topped by a supreme court. Although the act provided for the appointment of district judges and supreme court justices, no circuit judgeships were authorized. Instead, the circuit courts were to be staffed by judges from the other two courts. At first, the nation was divided into three judicial circuits, each to be visited twice yearly by two supreme court justices, who in combination with the resident district judge would form the circuit court. (7) The number of circuits inevitably grew with the nation, but political considerations often played a role in determining when to recognize new circuits and which states to include. The assignment of the states in the circuits was important because of the tradition of placing one representative from each circuit on the court.
Circuit-riding quickly became an object of complaint with the justices. Particularly onerous in the early days, it was never easy for the elderly men typically appointed to the court. Justice James Iredell of North Carolina, who drew the Southern circuit in the 1790s, was described as leading "the life of a post boy," traveling as much as 1,900 miles in a single circuit. (8) Even as transportation improved to make travel less difficult, the nation expanded in size to make the distances to be covered ever greater. In 1793 it was provided that only one supreme court justice was required to visit each circuit.9 In 1801, as we will see, circuit-riding was briefly eliminated but was quickly restored the next year, under circumstances that made further changes difficult. …