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The Size of the United States Supreme Court

Photograph of the Old Supreme Court Room, US Capitol Building, ca. 1900. Library of Congress Prints and Photographs Division, hdl.loc.gov/loc.pnp/cph.3b38511

On this day in 1837, President Andrew Jackson, in one of his last official acts, signed legislation to expand the size of the Supreme Court of the United States by adding two associate justice positions, increasing its size to a Chief Justice and eight associate justices. The same legislation also increased the number of federal judicial circuits from seven to nine. The Court’s size had been set at seven members in 1807 with the establishment of the Seventh Circuit comprising the states of Kentucky, Ohio, and Tennessee. After the allocation of circuits among the justices in 1807, a number of states were admitted in the south and the west. These new states were not assigned to an existing circuit court, but instead the district court judge in the state would also act, as needed, as a circuit judge. This practice was unpopular with local political leaders and members of the bar because it was more prestigious to have a member of the circuit court also appear on the circuit bench. The 1837 act remedied this problem by redrawing the circuit boundaries and creating two new circuits along with the two new positions on the Supreme Court.

Prior to the Judicial Code of 1911, the federal circuit courts were impaneled by one Supreme Court justice and one judge from the local federal district court where the case was heard. These panels originally had jurisdiction to conduct trials in important cases, and later gained appellate jurisdiction in limited areas. In 1891, Congress transferred the courts’ appellate jurisdiction to the newly established circuit courts of appeal which meant that members of the Supreme Court no longer had to ride circuit. However the circuit courts, even after losing most of their jurisdiction, were not abolished until 1911, when their remaining functions were transferred to other federal courts. Many important trials were conducted by Supreme Court justices in their role as circuit judges, including the Aaron Burr treason trial, and the decision of Chief Justice Taney in Ex parte Merryman, granting a petition for a writ of habeas corpus seeking the release of a Maryland citizen arrested by military authorities in 1861. The circuit courts in the western states also had crowded dockets because of the large number of trials involving land disputes.

In 1863, the Supreme Court’s size was increased to the Chief Justice and nine associate justices with the establishment of the Tenth Circuit. Six years later in 1869, the Court was fixed by law at its current size of nine members.

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