Yesterday I learned that the original configuration of the United States Supreme Court had an even number of justices: six justices.

The relevant Founders didn’t consider the possibility of a tie vote on a SCOTUS decision to be a very big deal.

So while there is a general myth, a meme, that the Supreme Court is designed to work with nine justices, as if nine judges on the high court are especially vital, the quorum under the present configuration is for six justices, which is an even number and the maximum amount is nine.  An odd number is the most useful and the most powerful as it allows a court’s decision to set legal precedent.

If the highest court ties, the decision defaults to the judgment of the lower court.  As stated the only problem with that outcome is that judicial precedent isn’t determined nationwide.  This CNN video explains it but since the “expert” furthers the “designed with nine justices in mind” falsehood it’s reasonable to doubt his assertion about judicial precedence and imperative to double check that.

The Constitution does not declare the make-up of the Supreme Court.  There is no high law set forth by the Framers of the Highest Law of the Land; James Madison did not craft the august legal body from a block of stone.  Our current configuration comes via the Judiciary Act of 1869, as the size of the Supreme Court is determined by a decision of the United States Congress.


via Article III of the United States Constitution:

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. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.


Congress determines the size of the Supreme Court and the scope of the membership and to an extent even the depths of its power.  The Judiciary Act of 1869 is just one specific example but it does define the current size as well as note implicitly that it’s not the executive branch that declares the numbers necessary total or how many members present are necessary for that court to function.


FDR attempted to pack the Supreme Court with judges friendly to his ideas of executive power and government reach but his quest failed, thankfully.


Feel free to just read the act.


All I get out of this, very simply, is that the numbers are locked in through a formal process, and chosen deliberately but that those results are not sacrosanct.  To that end, by what means the Executive Branch and the Legislative Branch use to select the members of the Judicial Branch are up to those directly involved and because of that the process is inherently political.  Any suggestion otherwise is whore shit.

Senator Jeff Merkley is absolutely filled with whore shit.  He accuses the Republican-held United States Senate as well the current Presidential Administration of politicizing the Supreme Court as if it has not happened since the very start.  Senator Merkley is either ignorant, which I doubt, or he is a liar, vomiting untruths into his followers like an evil mama bird for to the innocent well-meaning hatchlings.

In other words, my simple conclusion is that the Act directly implies the President’s duty is not to insure that the Supreme Court always has nine members, when the quorum for a functional Supreme Court is six.


When next I get a chance to enter something in my series on the Supreme Court… I hope it’s touching on examples of the Judicial Branch being politicized from the Era of the Founding Fathers and through McConnell’s Garland Gamble.

The fun part of this is the learning… I’m absolutely smart enough to figure out all this stuff but it’s not my general field of study.  Reading and listening to this stuff is a wonderful crash course in political history and tradition.