When this year began, I expected America’s 250th anniversary to be a celebration. And in many ways, it has been. I’ve spent the past several months watching history documentaries, reading anniversary retrospectives, and reflecting on the improbable journey this country has taken over two and a half centuries. But another conversation kept surfacing alongside all of it — one centered on the Supreme Court. Recent decisions, judicial appointments, proposals to expand the Court, questions of ethics and legitimacy: this year, the Court itself became one of the defining topics of America’s anniversary.
That led me to an uncomfortable realization. I already had opinions about the debate. What I didn’t have was enough historical understanding to be fully confident in those opinions. That bothered me.
One of the lessons I’ve learned in the later chapters of my life — through navigating chronic illness, through growing in my faith, through simply trying to make sense of a complicated world — is that the most important questions rarely reward quick answers. Wisdom usually begins where certainty slows down. So instead of reacting to headlines or borrowing whatever narrative happened to be making the rounds, I decided to spend part of America’s 250th anniversary doing something different. I decided to start with history.
“Blessed is the nation whose God is the Lord, the people whom He has chosen for His own inheritance.” — Psalm 33:12 (NASB)
That verse doesn’t answer constitutional questions, nor was it meant to. But it’s a reminder that while governments, courts, and political movements all have their place, the strength of a nation ultimately rests on something deeper than its institutions alone.
In This Article
A Question Worth Asking
That curiosity led me to a question I realized I couldn’t answer with confidence: why does the Supreme Court have nine justices? Was that number established by the Constitution, or was it simply a tradition that developed over time? The answer turned out to be more interesting than I expected.
Article III of the Constitution created the Supreme Court, but it never specified how many justices should serve on it. That responsibility was left to Congress. The Judiciary Act of 1789 established a Court of one Chief Justice and five Associate Justices — six members in total. Over the following eighty years, Congress adjusted that number repeatedly as the nation expanded westward and added federal judicial circuits. The Court grew to seven justices in 1807, and to nine in 1837 with the creation of two new circuits. By 1863, during the Civil War, it reached its historical peak of ten justices.
The reduction that followed wasn’t a routine adjustment. It was a deliberate political maneuver. In 1866, Congress passed the Judicial Circuits Act, authorizing the Court to shrink from ten seats to seven as vacancies occurred — not for any administrative reason, but a political one: to prevent President Andrew Johnson, locked in a bitter power struggle with Congress over Reconstruction, from filling any vacancies at all. Only one seat was actually eliminated before the plan ran its course, but the effect was exactly what Congress intended. Johnson left office having appointed no one to the Court.
Once Ulysses Grant took office in 1869, Congress passed the Judiciary Act of 1869, setting the number back up to nine, where it has remained ever since. The stated rationale was practical — a docket badly backlogged from the war and justices worn down by circuit-riding duties — but the timing, coming immediately after a friendlier administration took power, was not lost on anyone.
In other words, the number we’ve lived with for over 150 years wasn’t chosen for any principled reason about how many justices the Constitution requires. It emerged from a partisan fight over who got to pick them, followed by a return to normalcy once that fight was over.
America Changed. The Court Didn’t.
While the Court’s membership stabilized, the nation transformed beyond anything the Founders could have imagined. When the Declaration was signed in 1776, roughly 2.5 million people lived in the thirteen colonies. Today the United States is home to more than 340 million people, governed by a federal apparatus and body of law far more complex than anything the nineteenth century produced.
That naturally raises a question: should a nation that has grown more than a hundredfold still be served by the same number of justices set more than 150 years ago? At first glance, that seems like a compelling argument. The more I dug into it, though, the more I realized population is probably the wrong yardstick. The Supreme Court isn’t Congress — it was never designed for proportional representation. Its job is to interpret the Constitution, resolve disputes over federal law, and keep the federal judiciary consistent. None of that automatically scales with headcount.
That doesn’t end the conversation. It just means the real question is more nuanced than the population argument alone suggests.
1937 and the Plan That Failed
If 1866 shows what successful Court manipulation looks like, 1937 shows what failure looks like — and the difference between them is the whole argument.
By his second term, Franklin Roosevelt had grown frustrated with a Supreme Court that had struck down several major New Deal programs as unconstitutional. His response was direct: propose a law allowing the president to appoint an additional justice — up to six — for every sitting justice over the age of seventy who declined to retire. Roosevelt framed it as a modest efficiency measure, easing the burden on aging jurists. Almost no one believed that framing. The plan would have let him pack the Court with up to six new appointees of his own choosing, all but guaranteeing a majority favorable to his agenda.
Unlike 1866, Roosevelt had the political capital to make this work. He had just won reelection in a landslide, and his party controlled overwhelming majorities in both chambers of Congress. By any measure of raw political power, the plan should have passed.
It didn’t. Members of his own party balked. Editorial boards and much of the public saw the plan for what it was — an attempt to reshape a coequal branch of government because it kept ruling the wrong way — and the backlash was severe enough that the bill died in the Senate. Roosevelt never got his additional seats. The Court, notably, also shifted somewhat in his favor on its own not long after, in a development historians still debate as coincidence or as a strategic retreat by the justices themselves.
What makes 1937 worth studying isn’t just that it failed. It’s why it failed where 1866 succeeded. In 1866, Congress reduced the Court quietly, through a bill about circuit reorganization, aimed at a president most of the country had little sympathy for. In 1937, Roosevelt tried something similar in the open, against a court system many Americans still saw as legitimate, undertaken by a president they otherwise admired. The public drew a line between adjusting the Court’s structure and manipulating its outcomes — and once they saw the second, no amount of political power could push the plan through.
That’s the pattern worth remembering. The two most consequential attempts to change the Supreme Court’s size in American history didn’t turn on constitutional technicalities. They turned on whether the public believed the change was principled or self-serving.
The debate didn’t end in 1937, either. In 2021, a group of congressional Democrats introduced the Judiciary Act of 2021, a bill that would have expanded the Court from nine seats to thirteen — one for each federal circuit court of appeals, proponents argued. It went nowhere. Democratic leadership in both chambers distanced themselves from it almost immediately, and it never received a floor vote. That same year, President Biden convened a Presidential Commission on the Supreme Court to study the question more broadly. Its final report concluded that the commissioners themselves were in, in their own words, “profound disagreement” over whether Congress should act — mirroring, the report noted, the broader public debate. Supporters saw expansion as a necessary response to damaged confirmation norms, while opponents warned it would invite retaliatory packing by whichever party held power next. The commission took no position either way.
What Surprised Me Most
The biggest surprise in all of this wasn’t learning that Congress can change the Court’s size. That much is a matter of public record, and it has happened five times in eighty years. The real surprise was realizing that the debate isn’t fundamentally about arithmetic. It’s about legitimacy.
Every attempt to change the Court’s size in American history has come from the same impulse: a governing party frustrated with a Court that keeps ruling against it. What separates the attempts that succeeded from the ones that failed isn’t the merits of the underlying legal argument. It’s whether the public perceived the change as structural reform or as a raw power grab. Congress got away with it quietly in 1866. Roosevelt couldn’t get away with it in the open in 1937, even with the votes to do it. And in 2021, a proposal to do it again didn’t even survive contact with the party that introduced it.
That pattern told me something the population argument never could. Whatever you think about the Court’s current size, the honest debate was never really about how many justices are enough. It’s about whether the public trusts the motives behind changing that number — and history suggests that trust, once lost, is almost impossible to legislate back.
History Gives Us Context, Not Conclusions
Studying the history of the Supreme Court didn’t tell me what Congress should do. It didn’t tell me whether the Court should remain at nine justices or someday expand. What it did do was replace assumptions with understanding. That alone made the exercise worthwhile.
Perhaps that’s one of the greatest gifts of America’s 250th anniversary. It reminds us that before we decide what kind of republic we want to leave behind, we should first understand the one we’ve inherited. Every generation becomes a temporary steward of freedoms and institutions that others sacrificed to preserve. Our responsibility is not merely to protect them unchanged, nor to remake them carelessly, but to understand them honestly enough to know the difference.
Final Thoughts
Whether you believe the Supreme Court should remain at nine justices or someday change, I hope this reflection encourages you to do what I found myself doing this year: slow down, study the history, and understand the institution before deciding what should become of it.
Quick Facts About the Supreme Court
- The Constitution does not specify the number of Supreme Court justices.
- The first Supreme Court had six justices, established by the Judiciary Act of 1789.
- The Court has had as few as six and as many as ten justices in its history.
- Congress moved to shrink the Court to seven seats in 1866, specifically to block President Andrew Johnson’s appointments.
- Congress fixed the number at nine with the Judiciary Act of 1869 — the last time the Court’s size was changed.
- Franklin Roosevelt’s 1937 plan to expand the Court failed despite his party controlling Congress.
- Congress retains the constitutional authority to change the number of justices today by passing legislation.
Sources & References
- U.S. Constitution, Article III
- Judiciary Act of 1789; Judiciary Act of 1807; Judiciary Act of 1837; Act of March 3, 1863 (Tenth Circuit Act)
- Judicial Circuits Act of 1866
- Judiciary Act of 1869
- Judicial Procedures Reform Bill of 1937 (S. 1392, 75th Congress)
- Judiciary Act of 2021 (S. 1141 / H.R. 2584, 117th Congress)
- Presidential Commission on the Supreme Court of the United States, Final Report (December 2021)
- Congressional Research Service, “Congressional Power to Establish the Supreme Court,” Constitution Annotated, Congress.gov
- Federal Judicial Center, “The Supreme Court of the United States and the Federal Judiciary”
Disclaimer: This article is offered for educational and reflective purposes as part of Natural Vitality Advocate’s commitment to clear thinking and independent research. It is not legal analysis, and it does not advocate for or against any specific proposal to change the size of the U.S. Supreme Court. Readers are encouraged to consult primary historical and legal sources directly.