The Numbers Game

The Editor

ON SEVEN different occasions--or eight, depending on how and what occasions are being counted--the number of Justices on the Supreme Court has been fixed by statute. The last time was in 1869, when the present lineup of a Chief Justice and eight Associate Justices was determined upon. In the eighty years back from that date to the First Judiciary Act of 1789 the number on the bench had gone from six to ten and back to seven--except that before vacancies reduced the Court to that number, Congress added two more seats.

The reason? Sometimes it was a response to a not-always-logical relationship between the Court and the number of circuits, e.g., one Justice for each circuit. Sometimes it was a matter of politics, as in 1801 and 1802, and again in 1866 and 1869. This last date was the date of a "Court packing" maneuver; another attempt at "packing," in 1937, satirized in Herblock's renowned cartoon, did not succeed.

The First Judiciary Act established a six-member Supreme Court, and distributed the Justices among three circuits, called the Eastern, Middle and Southern Circuits. That made two Justices per circuit, which seemed both efficient and economical since there was not expected to be enough Supreme Court business to occupy those jurists full time, and two Justices and a District Court judge in the circuit could make up the Circuit Court. The idea was also to "keep the Supreme Court in touch with the country," as the phrase of the day had it.

Some purists--and all the Justices--objected to this arrangement from the outset. The purists pointed out that on cases appealed from the circuits, two members of the Supreme Court, or one-third of the reviewing panel, would already have sat on the case at the trial level. The Justices simply complained that riding circuit over uncertain roads was a hardship to which their dignity and time should not be subjected.

On the eve of Thomas Jefferson's incoming Anti-Federalist administration, the outgoing Congress enacted a second Judiciary Act in 1801. It was not without considerable merit, since it expanded the number of circuits to six and proposed to phase out circuit riding. But the law came a cropper on its political provision, reducing the size of the Supreme Court to five by stipulating that the first vacancy on the six-man bench was to be left unfilled.

The Jeffersonians promptly repealed the 1801 act and reviewed the 1789 law. No vacancy among the six Justices had materialized in the interim, so the number remained the same. Alas, however--circuit riding remained inviolate. In a new Judiciary Act in 1802, the Anti-Federalists continued the 1801 provision for six circuits, although it shuffled the states to be included in each.

In 1789 there had been three circuits for eleven states. Each state also had a District Court, and the Maine District of Massachusetts and the Kentucky District of Virginia were given District Courts with certain circuit jurisdiction. Almost at once, changes had to be made--Rhode Island and North Carolina, holdouts in the original ratification of the Constitution, belatedly joined the Union and Congress had to amend the statute to create new District Courts and merge these states into the existing circuits. Then three more states were admitted--Vermont (1791), which was incorporated into the Middle Circuit, and Kentucky (1792) and Tennessee (1795), which found themselves in limbo without any circuit affiliation.

The 1801 statute gave the circuits numerical, rather than geographical, identifications, which have been used ever since even though the states making up the circuits have changed rather wildly. The 1802 law continued the plan for six circuits, with one Justice per circuit. The number of states kept growing, however, and in 1807 a seventh circuit was created. By the logic of the circuit riding system, a seventh Justice was needed and the Court was enlarged accordingly. There was also an attempt to have one Justice from each geographic area represented by each circuit, and thus Thomas Todd, chief justice of Kentucky, became the seventh man on the federal Supreme Court.

This balancing of circuits and Justices soon became artificial. When Justice Stephen J. Field of California was added to the Court, a tenth circuit was created for the West Coast. The number of circuits had gone from seven to nine in 1837, and the number of Justices had expanded accordingly, but with the addition of Field it appeared that the correlation had reached its ultimate limit. Congress had at last relieved the circuit system somewhat by creating Circuit Court judgeships in 1875, and the number of circuits remained at nine after 1869. When the Circuit Courts of Appeals were created in 1891 (with a separate circuit created for the District of Columbia in 1893), the number of circuits (ten) established at the time of Field's appointment in 1863 became permanent--at least until current proposals for revising the circuits are acted upon.

Since 1891, with nine Justices and eleven circuits, it is obvious that two members of the Court have had to be responsible for two circuits apiece. The 1891 statute creating intermediate appellate courts made circuit riding no longer necessary, so the increase in the assignment of circuits was less onerous than it would have been otherwise. The modern practice is for the Chief Justice to assign the circuits to the respective members of the Court at the beginning of each term. The old Circuit (trial) Courts were merged with the District Courts in 1911.

The legislation of 1801 and 1802 had been the product of political infighting. The same was true in 1866, when Congress sought to deny President Andrew Johnson an opportunity to submit nominations for Court openings by providing that no vacancies were to be filled until the number of seats on the bench had been reduced to seven. As it turned out, the number never fell below eight. Meantime, in 1869, President Grant found a need to "pack" the Court, and Congress obliged by building the number back up to nine.

The reason for the "packing" was the Court's unreconstructed attitude toward the constitutionality of the Civil War legal tender acts, which had dealt with a financial emergency by making paper money ("greenbacks") acceptable on a parity with gold and silver in payment of certain obligations. A seven-judge Court held the law unconstitutional by a margin of 4-3, on February 4, 1870 (Hepburn v. Griswold, 8 Wall. 603). Grant, whose nominations for the two new positions authorized by Congress had been hanging fire, had his nominees (William Strong of Pennsylvania and Joseph Bradley of New Jersey) confirmed within a month following this first Legal Tender Case. Fifteen months later, on May 1, 1871, the two new jurists joined the former minority of three to form a 5-4 majority upholding the legislation in the Second Legal Tender Case (Knox v. Lee, 12 Wall. 457).

In 1937, the confrontation between the conservative majority on the Court and the New Deal administration of President Franklin D. Roosevelt led to another "packing" proposal. The proposal failed (Leonard Baker, the author of an article in this issue, describes the confrontation in his readable book, Back to Back: The Duel Between F.D.R. and the Supreme Court).

Amid these changes and chances, the task of tracing the lines of succession of the various Justices becomes complicated; the accompanying table, (SCAN ART) adapted from a table originally made by the Marshal of the Court in 1972, may be of help--although some students of the Court do not agree on the numbers involved. Charles Evans Hughes, most of them will admit, should be counted twice, since he was appointed at two different times, as Associate Justice (1911-16) and as Chief Justice (1930-41). By the same reasoning, Justices Edward D. White and Harlan F. Stone are counted only once--upon their appointments to the bench, without special accounting for their advancement to Chief Justice.

This brings up, at last, the ultimate problem in the numbers game--how many Chief Justices have there been? Fourteen? Fifteen? Sixteen? Or seventeen? The game begins with a definition of the status of John Rutledge in 1795. The Constitution provides for nominations to the judiciary by the President and confirmation by the Senate; thereafter, as a final step, a commission issues. However, interim appointments may be made and commissions issued, which are valid until the end of the session of Congress next ensuing. Rutledge's commission was for a recess appointment, and when the Senate failed to confirm at its next session, the commissions lapsed. Some contemporaries argued that this had the effect of invalidating the appointment altogether, in effect striking Rutledge from the records of sitting Justices. Either this reasoning, or faulty arithmetic, led to the labeling of the cast of Houdon's bas relief of John Marshall as "the third Chief Justice."

But there have definitely been fifteen--not fourteen--Chief Justices to date. Rutledge's recess appointment was completely in conformity with the Constitution (Article II, Section 2). Moreover, it vested him with authority which he affirmatively exercised, presiding at a session of the Court during the recess. But hold--in two other cases, men were nominated, confirmed by the Senate and commissions issued; what of them? Both of them entered the picture after the Rutledge brouhaha. Justice William Cushing was nominated January 26, 1796, and confirmed the next day, to succeed Rutledge; but Cushing concluded that an Associate's chores were as much as he wanted to discharge and within the week he declined the commission.

When the third (yes, third) Chief Justice, Oliver Ellsworth, resigned on September 30, 1800, President John Adams waited for Congress to assemble in December and nominated John Jay, who had already served as the first Chief Justice (1789-95). The November election results were in, and it was essential to secure the judiciary from the Jeffersonian, so the Senate confirmed on January 19, 1800. This time it took two weeks to get the message that Jay had declined his commission--due to the slowness of communications between Washington and New York.

No sixteenth. No seventeenth. Every first-year law student learns that a contract offer must be accepted to be valid. Res ipsa loquitur.

Copyright 1976, Supreme Court Historical Society