Can Congress increase or decrease the number of US Supreme Court justices when vacancies occur?

Answer 1

Yes. Congress has changed the size of the Supreme Court a number of times since the Court was first established in 1789. In most cases, they have expanded the Court to accommodate an increasing workload. But on at least two occasions, Congress used a reduction in the size of the Court to deprive a President of the opportunity to appoint new justices, as in the Judiciary Acts of 1801 and 1867.

In 1801, the Federalists reduced the size of the Court by one, with the hope that Thomas Jefferson would miss an opportunity to influence judicial ideology. Unfortunately for the Federalists, Jefferson's Democratic-Republicans took control of both houses of Congress and repealed the law before a vacancy occurred.

Congress used a similar tactic against Andrew Johnson in 1867 (after a failed attempt at impeachment) when they eliminated the seat of retired justice William Catron, reducing the size of the court from 9 to 8. In Johnson's case, the legislators were successful in preventing him from making an appointment.

After the election of President Ulysses S. Grant, Congress passed the Judiciary Act of 1869, which set the Court's membership at nine. This number has remained the same ever since.

1. Judiciary Act of 1789: Court size 6
2. Judiciary Act of 1801: Court size, 5
3. Repeal Act of 1802: Court size, 6
4. Judiciary Act of 1807: Court size, 7
5. Judiciary Act of 1837: Court size, 9
6. Judiciary Act of 1863: Court size, 10
7. Judiciary Act of 1866: Court size, 7
8. Judiciary Act of 1867: Court size, 8
9. Judiciary Act of 1869: Court size, 9

In 1937, Franklin D. Roosevelt attempted unsuccessfully to expand the membership of the court to gain support on the Court for his New Deal programs. He proposed adding one justice to the Supreme Court for every member over 70.5 years of age, with the potential of adding as many as six additional justices, for a total of 15. Congress refused to pass Roosevelt's legislation; however, the President had an opportunity to nominate eight justices* to vacancies that occurred during his terms of office, which created a court more receptive to his ideas.

Answer 2

Yes, Congress has the power to modify the number of Supreme Court justices. While the Constitution does not specify a fixed number of justices, it grants Congress the authority to establish and alter the size of the Court. In the past, the number of justices has been adjusted through legislation, with the current number of nine justices being set by an Act of Congress in 1869.