Nine Supreme Court justices? Why not stick with eight?

There haven't always been nine Supreme Court justices. In 1866, Congress reduced the Supreme Court to eight justices in protest against President Andrew Johnson.

Charles Dharapak/AP/File
The US Supreme Court. Seated, from left are: Anthony Kennedy, John Paul Stevens, Chief Justice John Roberts, Antonin Scalia, and Clarence Thomas. Standing, from left are: Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Justice John Paul Stevens, the court's oldest member, announced that he is retiring.

Like a starting lineup in baseball, the US Supreme Court has nine members. The number seems immutable, as if it’s always been that way. Didn’t they used to call the court “The Nine Old Men”? Isn’t nine justices a requirement written in the Constitution, or the Bill of Rights, or the Declaration of Independence?

Yes and no, no, and no.

Reporters did often refer to the Supreme Court of the FDR era as “Nine Old Men.” But there is nothing in any of America’s founding documents about how many high court justices there should be.

Congress gets to set the number by statute. It can change the makeup of the bench. And it has, many times.

Since the late 18th century, Congress has expanded or contracted the court on at least six occasions, according to the Supreme Court Historical Society.

Sometimes it’s because the folks on Capitol Hill were irritated with the court itself. More often, the changes were the indirect result of “a power struggle between the president and Congress,” writes former Clinton speechwriter Jeff Shesol in his book on FDR’s plan to pack the court with liberals, “Supreme Power.”

In 1866, for instance, President Andrew Johnson nominated his attorney general to a vacant court seat. But Congress gave a raspberry to the unpopular Johnson by passing a law that reduced the court from 10 members to eight – eliminating the open position.

Ouch. Whatever happens with President Obama and his nominee to replace retiring Justice John Paul Stevens, it will probably be better than that.

Congress set the court at nine members in 1869, and that is where matters have stood since. As Mr. Shesol recounts, FDR in 1937 tried to get lawmakers to agree to appoint a new justice for every sitting member over 70. It was an obvious attempt to make the Supreme Court friendlier to the New Deal – and it failed, in one of the biggest defeats of Roosevelt’s career.

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