One Supreme Court

While the Convention specified that the Chief Justice of the Supreme Court would preside over any Presidential impeachment trial in the Senate,12 decisions on the size and composition of the Supreme Court, the time and place for sitting, its internal organization, and other matters were left to the Congress. The Congress soon provided these details in the Judiciary Act of 1789, one of the seminal statutes of the United States.13 Originally, the Court consisted of a Chief Justice and five Associate Justices.14 The number was gradually increased until it reached a total of ten under the act of March 3, 1863.15 As one of the Reconstruction Congress’s restrictions on President Andrew Johnson, the number was reduced to seven as vacancies should occur.16 The number actually never fell below eight before the end of Johnson’s term, and Congress thereupon made the number nine.17

Proposals have been made at various times for an organization of the Court into sections or divisions. No authoritative judicial expression is available, but Chief Justice Hughes, in a letter to Senator Wheeler in 1937, expressed doubts concerning the validity of such a device and stated that “the Constitution does not appear to authorize two or more Supreme Courts functioning in effect as separate courts.”18 Congress has also determined the time and place of sessions of the Court. It exercised this power once to change the Court’s term to forestall a constitutional attack on the repeal of the Judiciary Act of 1801, with the result that the Court did not convene for fourteen months.19


Article I, § 3, cl. 6. [Back to text]
Act of September 24, 1789, 1 Stat. 73. The authoritative works on the Act and its working and amendments are FELIX FRANKFURTER & JAMES LANDIS, THE BUSINESS OF THE SUPREME COURT (1928); Charles Warren, New Light on the History of the Federal Judicial Act of 1789, 37 HARV. L. REV. 49 (1923); see also J. Goebel, supra at ch. 11. [Back to text]
Act of September 24, 1789, 1 Stat. 73, § 1. [Back to text]
12 Stat. 794, § 1. [Back to text]
Act of July 23, 1866, 14 Stat. 209, § 1. [Back to text]
Act of April 10, 1869, 16 Stat. 44. [Back to text]
Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judiciary Committee, 75th Congress, 1st Sess. (1937), pt. 3, 491. For earlier proposals to have the Court sit in divisions, see F. Frankfurter & J. Landis, supra at 74–85. [Back to text]
1 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 222–224 (rev. ed. 1926). [Back to text]