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Old 04-01-2019, 06:54 PM
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MEBuckner is offline
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Join Date: Aug 2000
Location: Atlanta, Georgia, USA
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Originally Posted by Whack-a-Mole View Post
Can congress pass a law setting the supreme court to one or zero people? What about a million? A hundred bazillion?
Who the hell knows? Constitutionally speaking there has to be a Supreme Court of some kind ("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") and the Constitution refers at one place to the "Chief Justice": The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

So, there has to be at least somebody who constitutes "the Supreme Court", and if Congress (and the President) decide to just have one guy, I guess he automatically gets to be "the Chief Justice" and preside over the Senate trial of an impeached POTUS.

Congress and the President (or super-majorities of both houses of Congress) could certainly decide that the Supreme Court should have a total of eleven members; or seven; or thirteen. It doesn't even have to be an odd number, however obvious and common-sense it may seem that it should be; the Judiciary Act of 1789 established a six-member court.

Note that if you read on in the Judiciary Act of 1789 it establishes the first inferior federal courts, with District Courts for each of the states; a total of thirteen District Courts because (duh!) there were thirteen states. Except, if you read it, there are District Courts for "the part of the State of Massachusetts which lies easterly of the State of New Hampshire" (AKA as "Maine", which did not become a separate state until 1820), and a district for Kentucky (which was still formally part of Virginia, and didn't become a separate state until 1792). So, there were no federal judicial districts for North Carolina or Rhode Island! What gives? Well, you see, the Judiciary Act of 1789 was enacted before North Carolina or Rhode Island had even ratified the Constitution. The Judiciary Act was enacted on September 24, 1789; North Carolina ratified on November 21, and Rhode Island held out until May 29 of the next year.

The point of all this is that it's hardly an exaggeration to say that the practice of Congress (and the President) setting the number of justices of the Supreme Court by federal law is as old as the Constitution itself. The motherfucking ink was barely dry on the Constitution, and Congress (and George Washington) were passing laws to establish the number of members of the Supreme Court. Because how the hell else would it be done?