Peter Nicolas, "Nine, of Course": A Dialogue on Congressional Power to Set by Statute the Number of Justices on the Supreme Court, 2 N.Y.U. J. L. & Liberty 86 (2006), https://digitalcommons.law.uw.edu/faculty-articles/294
New York University Journal of Law and Liberty
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.