How Many Justices Are On The Supreme Court? And Other Civic Literacy Questions…

One of the questions that routinely appears on surveys assessing what Americans know–or don’t–about their government is “how many justices serve on the Supreme Court?” It’s not as silly as “how many stripes are on the American flag?” but it’s close–neither question probes the respondent’s actual knowledge of the philosophy or structure of American government. They fall under the category of “government trivia.”

I’ve previously blogged about the difference between that sort of information and the nature of the non-trivial understandings that citizens ought to have, and I promise this isn’t one of those rants. (I know–you’re relieved.)

The answer to that question about the justices on the Supreme Court is nine. But there is no magic to that number.

It is not required by the Constitution. It hasn’t even always been nine. And as an article by a Rutgers law professor argues, it’s inadequate to the duties assigned to America’s top court. And his argument has nothing to do with suggestions that the Court be expanded if Kavanaugh is confirmed and Democrats subsequently take control of the Presidency.

The battle over court packing is being fought on the wrong terms. Americans of all political stripes should want to see the court expanded, but not to get judicial results more favorable to one party. Instead, we need a bigger court because the current institutional design is badly broken. The right approach isn’t a revival of FDR’s court packing plan, which would have increased the court to 15, or current plans, which call for 11. Instead, the right size is much, much bigger. Three times its current size, or 27, is a good place to start, but it’s quite possible the optimal size is even higher. This needn’t be done as a partisan gambit to stack more liberals on the court. Indeed, the only sensible way to make this change would be to have it phase in gradually, perhaps adding two justices every other year, to prevent any one president and Senate from gaining an unwarranted advantage.


  1. id go for more,now, lets see,trying to get congress to agree on cream, or sugar?we should also go to a few law professors too,to remind what law is about,a muni court judge,so the local answers are in context,and some jps,so the southern state can be understood with all that tobacky in their mouths. i agree, we need more,12 more,with again a odd number of justices.

  2. Thanks, Sheila. Good ideas to think about today that do not center on Cohen, Trump, Mueller or what’s his name… the new guy who knows where all the financial bodies are buried.

  3. The argument, I fear, does not hold together. Appellate courts hear everything that can be appealed as a matter of right, and some things that are discretionary. Most of their cases are heard by three-judge panels, and only the very important (e.g. new law, significant changing precedent) get heard en banc (by all the judges on the court). But the Supreme Court, with very few exceptions, only hears things that are very important. The decision by the Supreme Court is a decision that the matter must be ruled upon by the very highest level. Therefore, every case should be heard en banc, and there is no saving of effort with smaller panels. To do it any other way would, ultimately, add more, not less, work. Inconsistent SC panels would create more, rather than less, doubt. It would also create another layer of appeal and another layer of cases the SC must review en banc due to “lower court” inconsistency. It is facially appealing, but once you consider the true purpose of the USSC, I don’t think it really holds together.

  4. The role of government was to carry out communal duties and hold the private sector in check via its regulatory bodies. It has morphed into a grotesque monster which is using its power to oppress the people who elected them into office. Politicians and lying are synonymous.

    This is why statements such as these really grab our attention: “This argument makes so much sense.”

    Wait, what?

    Money has convoluted the whole society to the point where “common sense” seems illogical.

    What is the role of our SCOTUS? What is its objective?

    Let’s study it if we have to. Kind of like the gun debate…why can’t we study this issue so we can make informed decisions on what’s best?

    Please pause before answering…

    Several years ago, Tony Bennett conducted his personal political business on state computers. As a result, everything his secretaries saved on the computer became a matter of public record. I got a treasure trove of docs but most of them were sickening.

    People entering state positions who were begging other politicians for access to money for their campaign…”I’ll agree to anything, I just want this gig!”


    How did our public arena devolve into such a pit of treachery?


    The root of all evil because those who acquire money have power over those who don’t. It’s the secret sauce behind our convoluted political and economic system. Even Einstein saw that our structure promoted the corruption. Those with economic abundance could use it control the press, politicians, etc. To make themselves even wealthier.

    What do the greedy fear the most?

    Self-centered fear is the fear I may lose something I possess or fear that I may be deprived of what I think I deserve.

    If we change the systems, who does it benefit? Does it cause folks to lose power?

    Common sense goes along with truth-seeking and it’s why all the smart people on this blog can identify it. Being informed allows a group to make common sense decisions. If it’s good for the group, let’s do it.

    What’s so aggravating is the inability to pursue common sense solutions. It costs nearly $1 million to win a seat in Congress. So, if you have to raise money, guess who has the power? And guess who is scared to lose that power?

  5. How many cases have plaintiffs made from the 92 Counties — counted for taxes and three-branch government spring and fall leaves of books for adult federal workers to use to prepare for careers in federal paygrade roles? Not a lot of Hoosiers live on the Eastern I-95 Routes for church-state mail coupons.
    Kids 13-24 cannot study to be a Judge of the Supreme Court of the Army of the United States at the Capitol Fort in any County here, nor the mandated and responsible P1 and P2! Once you learn 123456789, you can answer up to Niner to get that Driver’s License to sell rides! Getting some Employee=Student TEACHERS’ Manuals and Dress Codes together might go a long way toward remediation for all of us Ohio-Kentucky Reserves called up in 1964, 1974, 1984… to stand in for the ACTING heads of bureaus (news) and DPW/HHS/FSS/ED D!

  6. Great points! How does our country go about making this change happen?

    Sure do wish that I had gone to law school.

  7. Increasing the number sitting on SCOTUS makes more sense than allowing one man (McConnell) to ignore the Constitution completely to pack the court with his party pick. Nine people; whatever their political affiliation, making final legal decisions effecting the entire nation is no longer feasible due to the population growth. The same needs to be said for two Senators from each state; no matter geographical size or population. A post on Facebook posed the question of sports teams being allowed to refuse a president’s (Trump, of course) invitation to visit the White House. Is Trump’s invitation to meet with Joe Donnelly on the Kavannaugh SCOTUS appointment an invitation or a government summons requiring he appear? The only “magic” in the number “9” is that it is an odd number; supposedly to assure a quarum to hear, decide and vote on vital issues.

    This subject brought to my mind all the decades of “court packing” with white men in court systems throughout this country as well as elected officials at all levels of government. Just as population has increased, so has our racial balance and the increasing number of qualified women.

    “A larger Court would also recognize–and moderate–the political aspects of jurisprudence.”

    The issue of those lifetime appointments to SCOTUS also needs to be addressed.

    Theresa’s comments are also on target; in addition to those she named and “what’s his name”, I’m going to add the name of Putin. We still haven’t the foggiest idea of how much control he has over decision making in the White House and Congress…or how long he has been part of the decision making. Allowing McConnell the power to halt the process of a SCOTUS nomination has always been questionable; his reason is well known, the source of his power is the question.

  8. Before you add justices to SCOTUS, please get Trump the hell out of the White House and slam the door on Pence’s ass!

  9. First, give Trump/Pence a spanking by flipping the majority in Congress in November and then REALLY find and usher in “The Best People” in 2020.
    A few of us have suggested Eric Swalwell for POTUS. Whom do you suggest? NOMINATE! DON’T WAIT!

  10. I believe much more study should be done before enlarging the court. I’m not sure that making it bigger would necessarily make it better. David’s points are spot on.

  11. Well let’s do some math: there were 9 positions when the Country had 13 colonies and 3,929,214 people (acc. to 1790 census). That was in 1797, giving 2.3 judges per million people. So extrapolating to 2018, with our 50 states and territories throw in about 327.16 million for population… according to the online population counter; what do we get? we now have 0.0275 judges per million: And to be equitable we need in our day at the same ratio: about 83 or 84 judges (using the 9 in 1790 as a baseline.) That would be equivalent to another Senate unto itself. Hmmmm… but it might work, gives the People a ration of approx. 3.9 judges per million. If my math is correct.

  12. Seems to me that the judges represent the law, not the people. What we need is a system that gives the country the best legal decisions possible by those judges.

    The current system of selection of judges no longer works as well as is required. We need a change. There are merits in Sheila’s ideas.

    For myself, I am more interested in HOW the judges are selected than the number selected.

  13. I would agree with David on this subject. Lifetime appointments seems over the top – 20 years and out. I also favor term limits for the House and Senate at the Federal and State Level.

  14. Valid points made by David Honig. I would agree, however, an increase of some number, perhaps to 15, for reasons I others have stated here. As for lifetime appointment – were it not for lifetime appointments, we would not have had Brown I and so many other progressive decisions. The pendulum began to swing the other way on January 1, 1969. Life time appointment protects the judiciary – for ill and for good. I believe the “good” has been greater since 1954, and can be great.

  15. All these words, on this blog, end up being irrelevant to the number: 4.1% GDP. That alone will produce results for the GOP in November.

  16. I almost always expand my civic knowledge here and today is certainly no exception. Interesting.

    I thought that the point that SCOTUS needs to be considered in the context of the whole Federal Judiciary seemed important.

    But, who decides? Who actually is given the Constitutional responsibility to “design” the Federal Judiciary?

    No matter the solution to this long term challenge, for now I still believe that our Congressional Democrats should dig in as a matter of principle and do everything to slow Kavanaugh’s consideration until next year. The solution to removing the politics the parties have cluttered up the appointment process with can only be to favor balance.

    And of course Shiela should be given consideration as a candidate. President Obama as well.

  17. Sheila —
    Thank you for educating me on a topic I had not thought about before. I really enjoyed this post. Now, getting it to actually come about, is a whole other can of worms!

  18. Sometime during the history of the U.S., there must have been a perfect size for the Supreme Court to be. When was it? And why don’t I know about it? It seems that the debate over the size is just an excuse for not getting anything done. We presently have a Congress to support that philosophy.

  19. Increasing the number of justices on the Supreme Court does not require a constitutional amendment because the number is not treated in the Constitution – it can be done with legislation. I think the number should be substantially increased a few every few years in order to remove or at least reduce the politics of it all.

    Parenthetically, Becky, while talking of the second quarter’s 4.1, don’t forget to mention the first quarter subpar 2.2 in economic growth. The current 4.1 is a blip caused by overbuying before the effective date of Trump’s tariff antics plus his giveaway of trillions of our tax money to the superrich in his Trump-Ryan tax bill of last December, among other debt-enhancing means employed by Trump (see $12 billion of our tax money to soybean farmers and billions if not trillions more to come as every tariff-affected sector sends its lobbyists to Washington with their hands out). Check with us again after the third quarter’s performance (unless Trump again borrows another blip by borrowing on our dime via tax and selective tariff atrocities).

  20. I say we expand to Turley’s number and do it during the first term we have control. Tired of playing softball with no genitals. Also should reduce terms to 20 or so years, and if the Senate takes more that four months to confirm, the resulting justice only serves five years.

  21. The only problem with expanding the court is that next time the GOP is in charge, they’ll expand it to 100,000,000 justices and appoint everyone who is a registered Republican or whose facebook profile contains posts railing on “Obummer”.

  22. Sheila’s suggestion, although seemingly quite reasonable, flies in the face of my long-standing proposal that we make the Supreme Court smaller. My argument is based on the fact that any school child can predict, with 99% accuracy, the votes of Justice Thomas and former Justice Scalia on any given issue. We could save the American tax payer at least a quarter of a million dollars per justice by thanking these ideologues for their service and sending them on their way. A designated school child, preferably advanced beyond the 3rd grade, would then forward to Chief Justice Roberts the presumed and invariably correct vote of Thomas (and Scalia’s successor) on each case before the court. Of course, in the case of Scalia, that would have meant giving up his voodoo mind-reading skills that claimed absolute knowledge of what each founder thought about hundreds of subjects that didn’t exist in 1789. I think the court could deal with that loss.

    On a more serious note, how would a larger court improve things if the same justice selection process remained in place? This problem is compounded by Sen. McConnell and like-thinking successors who might disallow a vote on nominations by presidents not of their party.

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