Nine, of Course: A Dialogue on Congressional Power to Set by Statute the Number of Justices on the Supreme Court
University of Washington School of Law
New York University Journal of Law & Liberty, Forthcoming
In this article, I hypothesize that 28 U.S.C. Section 1, which sets the number of justices on the United States Supreme Court at nine, is not a constitutionally valid exercise of congressional power. Rather, I theorize, under the design of the Constitution, the number of justices on the Supreme Court at any given time will vary depending on the number of justices the President chooses to nominate and how many of those, if any, members of the Senate opt to confirm.
In the manuscript, I consider and reject potential sources of congressional power to enact the statute, including the Necessary and Proper Clause of Article I and the Regulations Clause of Article III. I then consider how the constitutionality of the statute would be determined, including who would have standing to bring a challenge. Finally, I examine the consequences of my hypothesis.
Number of Pages in PDF File: 40
Keywords: Supreme Court, Justices, Nomination, Confirmation, Senate, President, Article III, Judiciary, Regulations Clause, Exceptions Clause, Necessary and Proper Clause, Constitution, Constitutional Law, United States Supreme Court, Federal Courts, Article I, Congress, House of RepresentativesAccepted Paper Series
Date posted: November 23, 2005
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