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Congress decided to set the size of the Supreme Court at nine, with eight Associate Justices and one Chief Justice, in the Judiciary Act of 1869. While the exact reason they chose this number is unknown, the most likely answer is that Congress knew the Court needed an odd number of justices to help avoid tie votes, and probably believed nine justices were enough to handle the federal appellate caseload.

As the US population continued to grow, the government kept the size of the Court at nine and made adjustments to the workload by adding the US Court of Appeals Circuit Courts in 1891, and by gradually reducing the Court's mandatory appellate jurisdiction to fit the size of the Court.

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