[The following is an extension of the remarks I made for the Woodrow Wilson Presidential Library and Museum “A Night With Supreme Court Expert Timothy Keefer” on February 6, 2023. The views expressed are my own.]
Why are there 9 Justices of the U.S. Supreme Court? Congressional inertia and a nation stuck in 1869. Under the Constitution, Congress sets the number of Justices. Traditionally the number of Justices on the Court equaled the number of Federal Circuits in the United States. Today there are 13 Federal Circuits (Circuits 1-11 (geographic), D.C., and the Federal Circuit). The number of Justices has ranged from five to 10, but since 1869 the number has been stuck at 9. Here is a listing of the number of Justices by date and a brief reason for the change.
1789 – 1801 – Six*
1801 – 1801 – Five**
1801 – 1807 – Six*
1807 – 1837 – Seven*
1837 – 1863 – Nine*
1863 – 1866 – Ten*
1866 – 1869 – Seven**
1869 – present – Nine* ***
*Legislation passed to make the number of Justices equal to the number of Federal Circuits.
**Number of Justices decreased to harm/prevent appointments by a political opponent. (When Congress decreases the number of Justices, none are removed. When one resigns, dies, or is removed by Impeachment they are simply not replaced.)
***Further legislation has not been passed to add Justices equal to the number of Federal Circuits.
In times past, the Justices would perform rotations to their assigned Circuits (“riding the Circuit”) and this helped tie the number of Justices to the number of Circuits. Today, Justices no longer “ride the Circuit” but are assigned a Circuit or Circuits (13 Circuits and 9 Justices means doubling or tripling up) from which they will rule on emergency appeals before a matter comes before the whole Court. Here are the current Circuit assignments:
D.C.; Fed.; 4th – Roberts, C.J.
1st – Jackson, J.
2nd – Sotomayor, J.
3rd; 5th – Alito, J.
6th; 8th – Kavanaugh, J.
7th – Barrett, J.
9th – Kagan, J.
10th – Gorsuch, J.
11th – Thomas, J.
As you see, Roberts, Alito, and Kavanaugh have multiple Circuit assignments. With 13 Justices each Justice would be assigned only one Circuit. In an article objecting to the increase to 13 Justices, Mr. Christopher Scalia (son of the late Supreme Court Justice Antonin Scalia) believes the only possible motive for the increase is political. See: https://www.usatoday.com/story/opinion/2021/04/22/court-packing-real-motive-adding-supreme-court-not-historical-column/7288802002/. He argues that the numbers should no longer be linked because Justices no longer “ride the Circuit” where they sit on the lower federal courts. But they should and that can be part of a new Judiciary Act; it would give them more practical judicial experience that most except Justice Jackson are lacking. Revitalizing Circuit riding (perhaps on their summer breaks, instead of going on lavish paid vacations?) would get the Justices out of their ivory tower and into the rest of the Federal Judiciary, and put the Justices closer to the people. Not everything needs to be political.
Importantly, there are no requirements for diversity on the Court of any kind. There are no qualifications, you just need to be appointed by the president and confirmed by the Senate. At one time there were traditions regarding religious and geographic origin diversity for the white males who served. No more. Today’s Court, while it is more diverse in terms of race and sex than it has been in the past, is not at all diverse in terms of geography or education. A majority of Justices had Washington, D.C. legal careers before being appointed (Chief Justice Roberts, and Justices Jackson, Kavanaugh, Kagan, and Thomas), 8 of the 9 attended Harvard or Yale for law school (the only outlier is Justice Barrett who went to Notre Dame). Increasing the number of Justices to match the Circuits can come with a recommendation (not a requirement) that presidents appoint people from the various Circuits to fill vacancies for that Circuit, providing geographic diversity and decreasing the number of Washington insiders. Increasing the number of Justices is also likely to increase the number of law schools or other educational backgrounds on the Court. Not everything needs to be political.
The absurd 2021-22 Term of the Court1 and the ethics scandals for Justices Alito and Thomas have brought the reputation of the Court to a terrible low point, both combining to produce the current crisis of legitimacy.2 These concerns have caused people to question the number of Justices, especially in light of the fact that a twice-indicted former President has appointed 1/3 of the Court. Many Americans feel that two of those appointments should have been Merrick Garland (nominated by President Obama) and a pick by President Joe Biden to fill the seat of the late Justice Ruth Bader Ginsburg. As a matter of law they are wrong, but as a matter of principle, upon which legitimacy rests, they are right. In response to the crisis of legitimacy, the Chief appeared in some respect to have tried to steer the Court toward a more sane Term with reasonable decisions as they pertain to the Voting Rights Act and the discredited “independent state legislature” theory. But permitting the Court to rule on a fake case to legalize discrimination in commerce (303 Creative3) (which strikes at the heart of the Court’s legitimacy), the student loan case, and it’s much criticized Affirmative Action case (an outcome not unexpected, the Court gave 20 years’ warning), will leave many feeling that the Court is picking and choosing in a political rather than legal manner in how to respond to the winds of the day while continuing its march against precedent and the rule of law. This only feeds the flames.
In response to the crisis of legitimacy, there have been many proposals regarding reining in the Court through term limits or imposing ethics codes from the outside. Most of these proposals face constitutional problems, requiring amendments. Increasing the size of the Court does not. I do agree with President Biden and Mr. Scalia, the Court size should not be changed for political reasons (to harm or help a president or president-to-be as has been done in our past). Instead, we should continue the tradition from the Nation’s founding and legislatively tie the number of Justices to the number of Circuits. This would be in keeping with the Nation’s history and traditions, to which the current Court likes to hearken. To answer the concern over politicization, legislation increasing the size of the Court to 13 should not give the sitting president four immediate appointments; this would be seen as a political power grab, a “packing” of the Court. A more fair approach would be to grant the sitting president one appointment, and then open up one new seat after each of the next three presidential inaugurations until 13 is reached. In this way, no one president or party could be guaranteed to “pack” the Court, and the people would indirectly have more of a say in the result. Republicans will not object to this as they withheld a vote on Merrick Garland because, it was argued, the people (i.e. the Electoral College) should choose the president to appoint the next Justice. Also, the increase in size nearly guarantees at least one vacancy during any particular president’s term.
The Court is an institution of traditions, but to regain trust and legitimacy changes are required. One of those changes is the absolute need for a binding ethics code enforceable by the Chief Justice. Only the Supreme Court itself can do this (absent a constitutional amendment). The other, however, is to renew a tradition and simultaneously provide for a more diverse (in all respects) Court that will have fewer power centers, more collaboration, and be more reflective of the nation that we are. Not everything needs to be political.
The answer is simple: 13 Circuits = 13 Justices.
Timothy J. Keefer, Esq.
1Justice Gorsuch, who contributed mightily to the Term’s awful results acknowledged as much: ”even in the ‘[c]ourts of the conqueror,’ the rule of law meant something. Where this Court once stood firm, today it wilts.” Oklahoma v. Castro-Huerta, 597 U.S. ___, Gorsuch, J. dissenting (internal citation omitted) (2022).
2https://thehill.com/regulation/court-battles/3807849-the-american-public-no-longer-believes-the-supreme-court-is-impartial/
https://www.nytimes.com/2023/07/14/opinion/supreme-court-ethics.html?unlocked_article_code=QbilwOj5t_h_oOzTXX2IW14ZtrcspwrTLZov2DAfpTFEsmqlMxXJsb1hywt1sEQBBZ5i4lAUkNv4I8y1Ht9loNWGxbN5Hu1Yc5ZwbSqkrcnqcvX426eWNar0F63YSg2I1iXirkoZ12pxvDfagvj9-H-ukELGONmAMOk5Ap0DtB3OhtfcYSLGpf2gIArFp7IvI_3BY32M-HF7p4Zrotm1ER264G65aghSmQd1jQ0k1o2e6umIriN_ItmbJk9191j7x9bpj0zzO_n4fIgxjdtBVbMgTsdN9zk-HwFjV9UZljRTxrElEo9Qwc8uur0r-nyw24zwV3rzOrImaMx5IOQ&smid=url-share
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