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Podcast Transcript

The United States Constitution identifies three separate branches of government: the executive, the legislative, and the judicial. Each branch has a set of checks and balances, which, in theory, limits the power of the others. 

Two of those branches are outlined in detail in the Constitution. The third, the judicial, is given very little mention in comparison to the other two, and much of its workings and its power in relation to the other two, had to be created over time. 

Learn more about the United States Supreme Court, its founding, and its development on this episode of Everything Everywhere Daily.

The US Supreme Court is unique in world history in that it was the first court to be placed on an equal footing with a country’s executive and legislative powers. 

Traditionally, a court was simply an arm of the king. A judge was nothing more than an agent of the crown; its job was to deliver the king’s justice. 

Even in republics, courts were subjects to the powers that be and couldn’t check the decisions they made. They simply were there to ensure the laws were executed fairly, but they didn’t have the power to strike down a law. 

The idea of a court equal in status to the two other branches of government emerged during the 1787 Constitutional Convention. The idea of using a court to check on the other branches of government found support at the convention. 

The main debate was between those who wanted a federal court versus those who thought that state courts could check the federal government.

The anti-federalists were concerned that a federal judiciary would be a source of tyranny and that the states were a better vehicle to check Congress and the President.

This concern was reflected in the Bill of Rights. Five of the ten amendments deal with judicial proceedings.  

The result of the debate at the Convention was Article 3 of the Constitution, which outlined the creation of a Supreme Court. The constitution was very vague as to how the court was to be organized. In fact, Section 1 of Article 3 is the only thing that hints at how the court was to be organized and it is so short that I can read it in its entirety. 

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

That’s it. The rest of Section 3 details the type of cases it can hear and the crime of treason. The Constitutional Convention basically kicked the can down the road to be decided by the first Congress. 

There is nothing about how many justices should sit on the court, how long they should serve, or anything else. Although Article 1, Section 3 refers to a Chief Justice, it never explicitly requires the appointment of one. 

In fact, it implies, but doesn’t explicitly say, that the court has the power to overturn laws passed by legislative and executive branches. 

Because the Constitution was so vague regarding the organization of the court and left that power to Congress, it was one of the first things that the first Congress had to attend to in 1789. 

The result was the Judiciary Act of 1789.

The Judiciary Act gave structure to the ambiguity in the Constitution. 

It set up the Court with six justices—five Associate Justices and one Chief Justice. It also created 13 districts in the 11 states that had ratified the Constitution at that time…North Carolina and Rhode Island hadn’t ratified at this point. 

In addition to district courts there were circuit courts. The circuit court was a traveling court that consisted of three judges, two Supreme Court justices, and a District Court judge. The term circuit comes from the fact that the judges had to “ride the circuit,” traveling from town to town.

It was exhausting, and most judges didn’t like it.

The Court’s early years were marked by relatively little influence, and it struggled to assert its authority. John Jay, the first Chief Justice, found the role unfulfilling and resigned to become governor of New York.

The big change to the court, and really to the entire federal system of government, occurred in 1803 with the landmark court case of Marbury vs Madison. 

The case originated from the very end of John Adams’ presidency, during the period known as the “Midnight Appointments.” In an effort to maintain Federalist control of the judiciary, Adams made several last-minute appointments, including William Marbury as a justice of the peace in the District of Columbia. However, the commissions for these appointments were not physically delivered before Adams left office.

When Thomas Jefferson assumed the presidency, he ordered his Secretary of State, James Madison, not to deliver the commissions. Marbury petitioned the Supreme Court for a writ of mandamus, or an order to compel Madison to deliver the commission.

Chief Justice John Marshall, who had been appointed by John Adams, faced a delicate situation. If he ordered Madison to deliver the commission, the executive branch could ignore the order, significantly weakening the perceived authority of the judiciary. If he ruled against Marbury, it would appear that the judiciary was weak and subservient to the executive branch.

Marshall’s solution was both clever and profound. He ruled that Marbury did indeed have a right to his commission but concluded that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted to the Court under Article III of the Constitution, and was therefore unconstitutional.

Marbury v. Madison established the principle of judicial review in the United States, effectively giving the Supreme Court the power to strike down laws, statutes, and some government actions that violate the Constitution. This was a revolutionary development, as it positioned the judiciary as a co-equal branch of government capable of overruling both the legislative and executive branches.

The number of justices that sat on the court changed over time. It was originally set at six in 1789.

In 1801, the Midnight Judges Act would have reduced the number to five by not reappointing a justice after the next one retired, but that was undone by the Judiciary Act of 1802.

Congress increased the number of justices as new states were added, and new circuit courts were created to cover these new states. 

The number of justices was increased to seven in 1807, nine in 1837, and ten in 1863. 

In 1866, the number was brought back down to seven, and in 1869, it was increased to nine, which is the number it still is today. 

Because the number of justices isn’t set in the Constitution, even since 1869, there has been a temptation to change the number to pack the court with justices who were sympathetic to the administration at the time. 

While the number nine isn’t set in stone, it has become a very ingrained tradition. 

Since 1869, the closest the court came to being packed occurred in 1937. President Franklin D. Roosevelt proposed a plan to expand the Supreme Court by allowing him to appoint an additional justice for every sitting justice over the age of 70, up to a maximum of 15 justices. The proposal was meant to counteract the Court, which had struck down several New Deal programs.

The plan was defeated overwhelmingly by the Senate, led primarily by Democrats who were members of the same party as FDR. The Senate voted against it 70-20 because they were concerned with the precedent it would set. 

The Constitution allows the president to appoint Supreme Court justices, but the Senate must approve them. Every US president has been able to appoint at least one justice to the Supreme Court except four: William Henry Harrison, Zachary Taylor, Andrew Johnson, and Jimmy Carter. 

Jimmy Carter was the only one who served a full term of the four. 

One of the unique things about the US Supreme Court is that appointments are for life. The Supreme Court is one of the few institutions in any democratic country with lifetime appointments and no mandatory retirement age. 

This has resulted in a system in which no one really knows when a justice will be replaced. Many justices will try to retire when there is a president of the same party as the one who appointed them. However, many are replaced when they die in office. 

In theory, Congress can remove justices. However, that has never happened. The closest it has come was the impeachment of Justice Samuel Chase in 1805, however, he was acquitted by the Senate.

Since the establishment of the Supreme Court, seventeen men have served as its Chief Justice. 

The appointment of the Chief Justice is similar to that of the appointment of a regular associate justice. A Chief Justice may be a current sitting justice, or it might be someone who is not on the court. Regardless, they have to still have to be appointed by a president and confirmed by the Senate.

The shortest serving Chief Justice was John Rutledge, who only had a tenure of 138 days in 1795. The longest serving Chief Justice was William Marshall who served for 35 years. 

Being Chief Justice only provides limited powers and responsibilities. 

The Chief Justice presides over the Supreme Court’s public sessions and private conferences where justices vote on cases. In these conferences, the Chief Justice speaks first and votes last.

When voting with the majority in a decision, the Chief Justice has the authority to assign who writes the Court’s opinion.

Ceremonially, the Chief Justice presides over the Senate trial if the President of the United States is impeached, and the Chief Justice traditionally administers the oath of office to the President during inaugurations.

Because of the importance of the Supreme Court and because of how little of the structure of the court is actually in the Constitution, there have been calls to amend the Constitution to fix, or at least codify, many aspects of the court. 

One suggestion has been to make the replacement of justices more regular. Rather than relying on unplanned resignations or deaths, there would be a set schedule for appointments. 

If the court were to remain at nine justices, one common suggestion would be to limit each justice to an 18-year term and appoint a new justice every two years. 

That way, each presidential administration would get exactly two Supreme Court appointments, eliminating any randomness in appointments. 

Another proposal would increase the number of justices dramatically, with as many as nineteen. Unlike a court-packing plan, the new justices would be appointed evenly over time, not all at once. 

The reason for increasing the size of the court would be to lessen the importance of any one justice. More justices would also mean more appointments. 

It should be noted that the US Supreme Court has one of the smallest high courts of any democratic country with an independent court system. 

Yet another proposal would be to eliminate the Supreme Court as a standing body altogether. This proposal would be to randomly appoint lower court judges to hear cases that reach the Supreme Court. 

There are currently 890 federal judges at various levels who fall under Article 3 of the Constitution and could potentially be drawn from for Supreme Court cases.  

Over the years, the Supreme Court has evolved from a weak institution to a powerful branch of government, asserting its authority through landmark cases and playing a critical role in shaping U.S. law and policy. 

Much of what the Supreme Court has become was not outlined in the Constitution but has evolved over time. 

Precisely because the Constitution is so vague on the structure of the court, whether through legislation or a constitutional amendment, the Supreme Court has a greater potential for future change than any other branch of government.