'Nine, of Course': A Dialogue on Congressional Power to Set by Statute the Number of Justices on the Supreme Court

Abstract

This article hypothesizes that 28 U.S.C. Section 1, which sets the number of Justices on the United States Supreme Court at nine, is not a constitutionally valid exercise of congressional power because the Constitution does not empower the U.S. House of Representatives to play a role in determining the Court's size. Rather, under the design of the Constitution, the number of Justices on the Supreme Court at any given time will vary depending on the number of Justices the President chooses to nominate and how many of those, if any, members of the Senate opt to confirm.

Pursuant to this hypothesis, if a Supreme Court Justice dies or retires, the Senate need not confirm a replacement if it decides that the size of the Supreme Court should be reduced. Similarly, even if the Court has nine active Justices serving on it, the President is free to nominate additional Justices, the Senate can vote to confirm those additional Justices if it deems it appropriate to expand the size of the Supreme Court.

The article considers and rejects potential sources of congressional power to enact the statute, including the Necessary and Proper Clause of Article I and the Regulations Clause of Article III. It then considers how the constitutionality of the statute would be determined, including who would have standing to bring a challenge. Finally, it examine the consequences of the hypothesis.

The article, first published in 2005, is relevant to the current debate between President Obama and some members of the U.S. Senate on the question whether the Senate is obligated to consider a replacement for Justice Scalia during President Obama's term or whether the Senate can instead decide to — at least on a temporary basis — reduce the Court's size to 8 Justices.

Keywords: Supreme Court, Justices, Nomination, Confirmation, Senate, President, Article III, Judiciary, Regulations Clause, Exceptions Clause, Necessary and Proper Clause, Constitution, Constitutional Law, United States Supreme Court, Federal Courts, Article I, Congress, House of Representatives