Study Guide

Judicial Branch & Supreme Court - The Supreme Court

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The Supreme Court

  • Supreme Court is most powerful and important institution of judicial branch
  • Constitution does not stipulate the number of justices on the Supreme Court
  • Today there are 9 Supreme Court justices; in the past the number has changed
  • Justices (and lower court judges) are appointed, not elected

What, then, became of the framers' rough sketch of the judiciary? What does the judicial branch look like today, more than 200 years since its inception?

Have you ever pried open the back flap of a radio to reveal its complex and colorful insides? Well, the federal court system is about as complicated at first glance, made up of dozens of individual mechanisms, each with its own unique function, but all working in concert with one another. So let's take it apart.

Where shall we begin? What better place to start than at the top: the Supreme Court. As you may already know, the Supreme Court consists of nine justices, including one chief justice and eight associates. But that wasn't always the case. Because the Constitution does not indicate the precise number of seats on the Court, and because Congress has the power to make the Court as big or small as it wants, the Court has fluctuated in size more than half a dozen times. (Article I, Section 3 calls for one chief justice, but does not specify an ideal number of associate justices. Therefore, over the centuries, Congress has had the power to decide how many associate justices should be appointed to the Court.)

With the passage of the Judiciary Act of 1789, Congress first set the size of the Supreme Court at six: one chief justice and five associate justices. This figure was based largely on the number of circuit courts—geographically based appellate tribunals—established under the same Act. Each Supreme Court justice would be responsible for overseeing one circuit. In 1801, when a Federalist-controlled Congress decided to reorganize the federal courts and eliminate the Supreme Court justices' circuit court duties, it reduced the number of Court members to five. Less than a year later, a newly elected Republican majority in Congress chose to make some changes of its own, reinstating the Court's circuit responsibility. (So much for a reduced caseload!) By 1807, Congress had created seven regional circuits and, thus, increased the number of Supreme Court justices to match. With rapid westward expansion in the first half of the nineteenth century and the addition of dozens of new states, Congress established two more circuits and—you guessed it—added two more seats to the Court; with the passage of the Eighth and Ninth Circuit Act of 1837, the number of justices on the Supreme Court increased from seven to nine.

Nine! That's what we have today, so that's where the fluctuations stop, right?


Amid the chaos of the Civil War, the Republican majority in Congress voted to add a tenth justice to accommodate a new West Coast circuit, making the Court the largest it has ever been. However, from 1863 to 1866, the complete group of ten justices sat together for just one week; war, illness, and difficulties of long-distance travel kept attendance below ten until 1866, when Congress reduced the size of the Court back to nine seats, and shortly thereafter, to seven. Finally, in 1869, during Radical Reconstruction, one of the most experimental periods in legislative history, Congress once and for all expanded the Court to seat—drum roll, please—nine members. This odd number, ideal for preventing tie rulings, has remained the same ever since.

Okay, so nine justices it is. What kind of people are qualified to wear those floor-length black robes, and how are they chosen? Quite unlike the president and members of both houses of Congress, these powerful public servants are appointed, not elected by the American people. As the Constitution states, qualified candidates—drawn from a pool of leading attorneys and judges, respected legal scholars, members of Congress, governors, and even former presidents—are nominated by the current president, who has the freedom to choose someone who is sympathetic to his or her own legal, economic, political, and social goals. Because the appointee, if confirmed, could serve for many decades, the selection is an important one, and perhaps one of the most impactful decisions the president will make while in office. But an appointed justice must pass confirmation hearings conducted by the Senate Judiciary Committee. If, and only if, the Senate chooses to confirm the nomination, the candidate is appointed for a lifetime term on the Court. Incidentally, all federal judges and justices—not just the Supremes—are appointed by the president and confirmed by the Senate. Terms of service, however, vary by court; like Supreme Court justices, judges chosen for US District Courts, US Court of Appeals, US Court of International Trade, and the Court of Appeals for the Federal Circuit serve for life. Judges are appointed for fifteen-year terms in the US Court of Appeals for the Armed Forces, the US Tax Court, the US Court of Federal Claims, and the US Court of Appeals for Veterans' Claims. Judges who sit on the District Court of Appeals are chosen for eight-year terms. Those in the courts of the District of Columbia serve for four years. You'll be tested on this later. Just kidding. Maybe.

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