Publication Title

New York University Journal of Law and Liberty

Document Type



Conventional wisdom seems to hold that Congress has the power to set, by statute, the number of justices on the United States Supreme Court. But what if conventional wisdom is wrong? In this Dialogue, I challenge the conventional wisdom, hypothesizing that the United States Constitution does not give Congress the power to enact such a statute. Under this hypothesis, the number of justices on the Supreme Court at any given time is to be determined solely by the President and the individual members of the United States Senate in exercising their respective powers of nominating justices and consenting to their appointment. If this hypothesis is correct, the number of justices on the Supreme Court could be increased or decreased without the House and Senate voting to amend the existing statute that purports to set the number of justices on the Supreme Court at nine. Rather, the number of justices on the Court at any time would vary depending on how many individuals, if any, the President chooses to nominate and how many of those, if any, members of the Senate opt to confirm.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.