Why Does the Supreme Court Have Nine Members?

There weren't always nine Supreme Court justices.

A day of remembrance

The death of Supreme Court Justice Ruth Bader Ginsburg on Friday, September 18, 2020, sent the people of the United States into mourning. People paid their respects around the country by leaving flowers and hand-made signs at the Supreme Court building in Washington, DC, and placing legal pads and flowers at Columbia Law School, where Ginsburg graduated in 1959 at the top of her class, just one of the ways Ginsburg made history. Since her passing, the question turns to how to replace a Supreme Court Justice and, likewise, why are there nine justices, anyway?

A bit of history

Like most modern systems, what happens now is a result of history. For starters, there weren’t always nine Supreme Court justices. You might be surprised to know that the U.S. Constitution never set a standard number of justices. Instead of having the total number written in the U.S. Constitution, it leaves the power up to Congress to determine the final number. Over hundreds of years, the total number of justices have ranged from five to ten, including the initial number of six due to the Judiciary Act of 1789 to the present number set at nine. Learn some more interesting facts and figures about the U.S. Constitution.

A brief timeline

To put the changes in perspective, it’s good to put them in order. According to History.com, the number of justices began at six because of the Judiciary Act of 1789. That included a chief justice alongside five associate justices. The Judiciary Act of 1789 reads:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the supreme court of the United States shall consist of a chief justice and five associate justices, any four of whom shall be a quorum, and shall hold annually at the seat of government two sessions, the one commencing the first Monday of February, and the other the first Monday of August.
Since 1789, Congress changed the maximum number of Justices on the Court several times, with a bit of a tug-of-war in 1801. In short, the Judiciary Act of 1801 was passed by President John Adams and Congress to reduce the number down to five justices, but then-incoming President Thomas Jefferson repealed that act and put the number of justices back up to six. In 1807, less than two decades after the Judiciary Act of 1789, one more justice was added to the Supreme Court for a total number of seven. In 1837, 30 years after the first major change, the number of justices increased to nine. The highest total number of justices happened in 1863, when the total number of justices was ten. That didn’t last for long. The number of justices decreased in 1866 to seven due to the Judicial Circuits Act. The current number of nine justices has been set since 1869—a period of more than 150 years.

Looking to the future

Many of these decisions and the changes to the number of justices on the Supreme Court of the United States were due to politics. Will the number of justices change yet again? Only time will tell. For now, remember Ruth Bader Ginsburg’s life by reading these 9 powerful quotes that define her legacy.

Madeline Wahl
Madeline Wahl is a Digital Associate Editor/Writer at RD.com. Previously, she worked for HuffPost and Golf Channel. Her writing has appeared on HuffPost, Red Magazine, McSweeney's, Pink Pangea, The Mighty, and Yahoo Lifestyle, among others. More of her work can be found on her website: www.madelinehwahl.com