WEEKLY STANDARD — To hear some on the left tell it, the Supreme Court would be hamstrung if it had to function for a year or more without a ninth justice. What to do in the event of a 4-4 tie? This would not have been viewed as a problem, however, by America’s Founders, who created a Court with an even number of justices—six. In fact, Marbury v. Madison, arguably the most important case in the Court’s 226-year history, was decided by a six-justice Court.
The Constitution, of course, leaves it up to Congress to decide how many justices will serve on the Supreme Court. In 1789, Congress passed, and President Washington signed, the Judiciary Act. That law determined that the number of Supreme Court justices should be six. The Congress of that day was full of men who had been at Independence Hall two years earlier and had participated in the writing of the Constitution, so they presumably knew what they were doing.
With a six-justice Court, a 3-3 opinion simply meant the Court wouldn’t overturn a lower federal court ruling but instead would let it stand (or wouldn’t alter the status quo in a case taken up by the Court as a matter of original jurisdiction). One effect of a six-person Court was that it took two-thirds of the Court (4 votes to 2) to declare unconstitutional a law duly passed by Congress or a state legislature. With a nine-person Court, 5-4 rulings are commonplace: In modern times, the trajectory of the nation has changed repeatedly on the personal whims of an Anthony Kennedy or a Sandra Day O’Connor. An even-numbered Court seems to be more conducive to judicial restraint.