# Why are there still only nine Supreme Court justices? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [March 26, 2019, 10:46pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584 "2019-03-26T22:46:16Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![DorkVader](https://avatars.discourse-cdn.com/v4/letter/d/73ab20/32.png) [@DorkVader](https://boards.straightdope.com/u/DorkVader)\ **Post date:** [March 28, 2019, 1:38am UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/21 "2019-03-28T01:38:45Z")
My wag, Alpha Twit, would be that congress would simply decide that the next two judges to retire/die wouldn’t be replaced. Thats actually the easiest AND simplest part of that hypothetical. ---
**Author:** ![DorkVader](https://avatars.discourse-cdn.com/v4/letter/d/73ab20/32.png) [@DorkVader](https://boards.straightdope.com/u/DorkVader)\ **Post date:** [March 28, 2019, 1:43am UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/22 "2019-03-28T01:43:17Z")
On review, what I said isn’t true at all. Since it’s too late for an edit, I retract my former statement. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [March 28, 2019, 3:01am UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/23 "2019-03-28T03:01:44Z")
> [@guestchaz](#): > > My wag, Alpha Twit, would be that congress would simply decide that the next two judges to retire/die wouldn’t be replaced. Thats actually the easiest AND simplest part of that hypothetical. Why do you think that wouldn’t be possible? That’s exactly how Congress reduced the Court during Andrew Johnson’s presidency, to keep him from appointing Justices. > **[Chase Court](https://en.wikipedia.org/wiki/Chase_Court)** > > The Chase Court refers to the Supreme Court of the United States from 1864 to 1873, when Salmon P. Chase served as the sixth Chief Justice of the United States. Chase succeeded Roger Taney as Chief Justice after the latter's death. Appointed by President Abraham Lincoln, Chase served as Chief Justice until his death, at which point Morrison Waite was nominated and confirmed as his successor. > The Chase Court presided over the end of the Civil War and much of the Reconstruction Era. Chase was a co... ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [March 29, 2019, 6:44pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/24 "2019-03-29T18:44:02Z")
> [@SigMan](#): > > What works is the odd number so there’s no tie. 9 seems plenty enough as I thought 7 would be apt. There’s a good argument to make that it should be an _even_ number so there can’t be a tie. Winning by one vote makes for pretty bad precedents, and increasingly politicizes the court. If you had to win by two votes, there would be fewer very close split decisions. A tie isn’t that bad. It just means that the lower court decision stands and no national precedent is made. That’s arguably better than a 5-4 decision that gets reversed a decade later. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [March 29, 2019, 7:28pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/25 "2019-03-29T19:28:47Z")
> [@iamthewalrus\_3](#): > > A tie isn’t that bad. It just means that the lower court decision stands and no national precedent is made. That’s arguably better than a 5-4 decision that gets reversed a decade later. Wait, I thought a tie means a precedent is made - for instance, when Abigail Fisher brought her case to SCOTUS, trying to get affirmative action overturned, the Court ruled 4-4 and it meant that affirmative action was upheld and that such a case can’t be brought to SCOTUS again - or does it mean “nothing happens” and a similar case \*\*\*can \*\*\*be relitigated? ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [March 29, 2019, 9:21pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/26 "2019-03-29T21:21:25Z")
We might need a legal scholar to chime in, but my understanding is that a tie means that whatever decision the lower court made stands, but that it doesn’t establish anything in general. The court generally issues a very brief decision, and there’s obviously no strong precedent because they couldn’t even agree on what the precedent should be. Presumably as soon as any justice has changed, or even if a case with very slightly different details arises, the court might revisit the issue. > [@Velocity](#): > > the Court ruled 4-4 and it meant that affirmative action was upheld and that such a case can’t be brought to SCOTUS again The Court is its own arbiter of what cases can be brought to it (within Constitutional limits). Presumably if the composition of the court hadn’t changed and the case wasn’t sufficiently different, they wouldn’t bother to hear another case that they’d deadlock on. But that’s their call to make. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [March 30, 2019, 2:05am UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/27 "2019-03-30T02:05:21Z")
That’s correct. A tie in the US Supreme Court just means that the appeal is dismissed and the lower court judgment stands, by without setting any precedent. It takes a majority vote to allow an appeal, and a majority to establish a precedent. It’s a bit different in the Commonwealth courts. ---
**Author:** ![ITR\_champion](https://avatars.discourse-cdn.com/v4/letter/i/c67d28/32.png) [@ITR\_champion](https://boards.straightdope.com/u/ITR_champion)\ **Post date:** [March 31, 2019, 6:10pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/28 "2019-03-31T18:10:49Z")
> [@Steven\_Estes](#): > > Since 1869 the number of Supreme Court justices has remained at nine, with, I believe, only FDR’s failed attempt to raise the number even trying to change this. > Since it simply takes a congressional vote to raise the number, how come it hasn’t happened fat more often (when a party held a strong position in both houses)? In addition to what others have said, it should be mentioned that for most of American history, the Supreme Court wasn’t all that important. ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [March 31, 2019, 10:47pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/29 "2019-03-31T22:47:02Z")
> [@Smapti](#): > > If Democrats take the Senate and the White House next year, court-packing would be a wise move on their part. This. And I couldn’t be happier that Court-packing is quickly turning into a litmus-test issue in the Democratic primary. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [March 31, 2019, 10:52pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/30 "2019-03-31T22:52:41Z")
> [@2ManyTacos](#): > > This. > > And I couldn’t be happier that Court-packing is quickly turning into a litmus-test issue in the Democratic primary. In the three or four threads on this topic, I still have yet never seen an answer to the question of how the D’s intend to pack the Court without expecting similar Republican escalation down the road. ---
**Author:** ![ITR\_champion](https://avatars.discourse-cdn.com/v4/letter/i/c67d28/32.png) [@ITR\_champion](https://boards.straightdope.com/u/ITR_champion)\ **Post date:** [March 31, 2019, 11:10pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/31 "2019-03-31T23:10:27Z")
Seems to me an even bigger obstacle is that the Republicans could filibuster. Is there any reason they couldn’t. And if the answer is that Democrats will end the filibuster, consider that if Democrats do win the Senate, it will surely be with only a one- or two-vote majority. To pass anything, they’ll need moderates like Angus King, Doug Jones, and Joe Manchin on board. I don’t see those three going along with such a plan. ---
**Author:** ![aceplace57](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aceplace57/32/3500_2.png) [@aceplace57](https://boards.straightdope.com/u/aceplace57)\ **Post date:** [April 1, 2019, 3:45am UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/32 "2019-04-01T03:45:10Z")
It’s harder to get a consensus in a big group. A Supreme Court with 21 members would be so divided. It wouldn’t just be conservative/liberal. Imagine the posters in GD and all the views expressed. Project that onto SCOTUS. 9 is a good number. It allows some shift in positions. Roberts for example has voted with the other side several times. Kavanaugh has already done it several times. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [April 1, 2019, 2:16pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/33 "2019-04-01T14:16:17Z")
> [@aceplace57](#): > > It’s harder to get a consensus in a big group. A Supreme Court with 21 members would be so divided. It wouldn’t just be conservative/liberal. Consensus isn’t necessarily necessary or beneficial; it’s good to have diverse views. And the lack of consensus becomes irrelevant anyway eventually - at the end of the day, a vote is a vote: One way or another, there will be a vote in favor of a particular outcome when the justices cast their ballots. ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [April 1, 2019, 2:25pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/34 "2019-04-01T14:25:21Z")
> [@Velocity](#): > > In the three or four threads on this topic, I still have yet never seen an answer to the question of how the D’s intend to pack the Court without expecting similar Republican escalation down the road. While I agree that court-packing would not be a good idea, the possibility of “turn-about is fair play” down the road didn’t stop Republicans from blocking Garland’s nomination or any number of other ploys that could come back to bite them in the ass when they are no longer in control. ---
**Author:** ![SamuelA](https://avatars.discourse-cdn.com/v4/letter/s/c77e96/32.png) [@SamuelA](https://boards.straightdope.com/u/SamuelA)\ **Post date:** [April 1, 2019, 5:11pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/35 "2019-04-01T17:11:12Z")
There is a practical limit to court packing. Each Justice is an expensive salary to pay for the rest of their lives, once there are hundreds of justices it becomes difficult for them to even all ask their questions during a hearing, and so on. So if one party decided to go hard and make the Supreme Court 500 people, it would be tough for the other party to really increase the limit enough to overcome the votes of the 500 people already there. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [April 1, 2019, 6:22pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/36 "2019-04-01T18:22:42Z")
> [@ITR\_champion](#): > > In addition to what others have said, it should be mentioned that for most of American history, the Supreme Court wasn’t all that important. What? Please read a good book about the Court. Hell, even read a bad book about the Court. It just ain’t true. In many ways, the Court is less important today than at most earlier times. In fact, the number of cases it hears [has been declining for decades](https://fivethirtyeight.com/features/the-supreme-courts-caseload-is-on-track-to-be-the-lightest-in-70-years/), both in absolute terms and as a percentage of cases filed. > [@aceplace57](#): > > It’s harder to get a consensus in a big group. A Supreme Court with 21 members would be so divided. It wouldn’t just be conservative/liberal. The appeals courts have [large numbers of judges](https://en.wikipedia.org/wiki/United_States_courts_of_appeals#Circuit_population). The 9th district has 29. They handle the numbers by having most cases handled by three-person panels. Only for a few major cases does the entire circuit hear them. Doing it this way greatly increases the number of cases that get heard. Most cases stop at the panel level. This vastly helps the process. Right now the Supreme Court does not grant certiorari to the great majority of cases. It couldn’t possible handle the load, even if it went back to case levels of the 1960s. A much larger court that split into panels to handle the lesser stuff could greatly increase caseload. Political implications aside, a larger court is an answer to an urgent need. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [April 1, 2019, 6:36pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/37 "2019-04-01T18:36:27Z")
> [@Exapno\_Mapcase](#): > > … Political implications aside, a larger court is an answer to an urgent need. Is it urgent enough that you’d like to see the current Congress enlarge the SCOTUS and the current President pick a bunch of additional judges, and have them approved by the current Senate? ---
**Author:** ![SamuelA](https://avatars.discourse-cdn.com/v4/letter/s/c77e96/32.png) [@SamuelA](https://boards.straightdope.com/u/SamuelA)\ **Post date:** [April 1, 2019, 7:31pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/38 "2019-04-01T19:31:52Z")
> [@Exapno\_Mapcase](#): > > Doing it this way greatly increases the number of cases that get heard. Most cases stop at the panel level. This vastly helps the process. > > Right now the Supreme Court does not grant certiorari to the great majority of cases. It couldn’t possible handle the load, even if it went back to case levels of the 1960s. A much larger court that split into panels to handle the lesser stuff could greatly increase caseload. > > Political implications aside, a larger court is an answer to an urgent need. Maybe? Right now, with the Federal appeals system, there is a geographic difference in what “justice” means. Obviously if your case gets heard by the 9th circuit, “justice” means a more liberal outcome. But if you had 301 justices on the Supreme court, split into 9 justice panels, it would be really rare for a case to be held by the whole court. Most of the time, it would essentially be like appealing to another level of Federal appeals court. Still tons of opportunity for injustice to happen, and appeals courts usually just uphold the lower court. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [April 1, 2019, 10:28pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/39 "2019-04-01T22:28:29Z")
> [@HurricaneDitka](#): > > Is it urgent enough that you’d like to see the current Congress enlarge the SCOTUS and the current President pick a bunch of additional judges, and have them approved by the current Senate? What part of “political implications aside” didn’t you understand? > [@SamuelA](#): > > appeals courts usually just uphold the lower court. Can we have a cite on this? ---
**Author:** ![SamuelA](https://avatars.discourse-cdn.com/v4/letter/s/c77e96/32.png) [@SamuelA](https://boards.straightdope.com/u/SamuelA)\ **Post date:** [April 1, 2019, 10:44pm UTC](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584/40 "2019-04-01T22:44:43Z")
> [@Exapno\_Mapcase](#): > > What part of “political implications aside” didn’t you understand? > > Can we have a cite on this? > **[Just the Facts: U.S. Courts of Appeals](https://www.uscourts.gov/news/2016/12/20/just-facts-us-courts-appeals)** > > Crimes involving drugs fueled a 15 percent increase in criminal appeals last year even as the total volume of appeals continued to steadily decline, according to statistics from the Judiciary Data and Analysis Office for the U.S. court system. \* Fewer than 9 percent of total appeals resulted in reversals of lower court decisions in 2015. Appeals of decisions in U.S. civil cases and prisoner petition appeals had the lowest rates of reversals (See Table 2 and Chart 3). \* Also remember that parties who don’t feel they have a strong case are not going to appeal. Most civil and criminal cases end in a settlement between the parties, not a court decision, and these settlements are generally not appeal-able as they were agreed to by both sides. (in rare cases, new evidence is discovered and then the original settlement gets appealed by the side of the case that the new evidence supports) [Previous page](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584.md?page=1) [Next page](https://boards.straightdope.com/t/why-are-there-still-only-nine-supreme-court-justices/831584.md?page=3)