I was taught the Supreme Court as cases, not as civics. In my own account, a lawyer who taught me spent his time on what the Court ruled and why, which is a different subject from knowing the Court exists. This piece is about the institution itself: how big it is and who decided that, who has sat on it, how long they sit, who checks them, and how often they explain what they do. Most of these are things the Constitution does not say, and most people I talk to assume it does.
Article III opens: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." It says the judges "shall hold their Offices during good Behaviour." [1] That is nearly all it says about the Court's makeup. It does not say how many justices there are, and it sets no qualifications at all: no age, no profession, no degree. A justice does not have to be a lawyer or a law school graduate, though every justice so far has been trained in the law. [22] In 1993 President Clinton was reported to be seriously considering Governor Mario Cuomo of New York for the Court; Cuomo released a letter that April saying he did not wish to be considered. [23] The point is not who got the seat. It is that the choice of who sits there is as open as the Constitution leaves it, and the Constitution leaves it almost entirely to the president and the Senate.
Congress decides. The first Judiciary Act, in 1789, set the Court at six: a Chief Justice and five associates. Congress made it seven in 1807, then nine in 1837, then ten in 1863. In 1866 it cut the Court back toward seven and provided that vacancies not be filled until that number was reached; the sitting Court fell to eight. In 1869 an act "provided for nine justices, one for each of the judicial circuits established in 1866." [2][3] The size has been nine ever since. [2]
So the range in the record is six to ten, and the number has changed by act of Congress at least five times. The last change is more than 150 years old. In 1869 there were nine federal circuits and one justice for each. [2] Today the federal courts of appeals number thirteen. [4] I am not saying the number should change. I am saying that "nine" is a decision, made by a Congress in 1869 for a reason that no longer describes the country, and that it has stayed in place because nobody has made a new one.
The Court's own website says only that "Nine Justices make up the current Supreme Court: one Chief Justice and eight Associate Justices." [5] It does not say who set that number. The record of who did is in the statutes.
The Court has had 116 justices. Of those, 110 have been men, about 95 percent. [6] Every one of them was a white man until 1967.
Some of the firsts, with the dates the record gives:
- *Louis Brandeis*, the first Jewish justice, appointed by Wilson in 1916 after a confirmation fight that, according to one account, turned on his "perceived anti-business stance" and "to a lesser extent, his Jewish ancestry." [7]
- *Thurgood Marshall*, the first Black justice. The Senate confirmed him 69 to 11 on August 30, 1967, and he was sworn in October 2. [8]
- *Sandra Day O'Connor*, the first woman. The Senate confirmed her 99 to 0 on September 21, 1981, and she was sworn in on September 25. [9] I think of her as the quieter justice. Her unanimous vote is the part of that story that is the record; the quiet is my reading.
- *Sonia Sotomayor*, the first Hispanic justice, confirmed August 6, 2009. [10]
- *Ketanji Brown Jackson*, the first Black woman, confirmed 53 to 47 on April 7, 2022, and seated June 30. [11]
I keep returning to the dates. For most of the Court's existence, the people who decided what the Constitution means for everyone were drawn from one narrow slice of the country. That is a fact of the record. Whether it matters, and how much, is the reader's to decide. In my reading, the Court is the least representative branch of the government: Congress is elected, the presidency is elected, and the Court is appointed, for life. That is an argument, not a statistic, and the lists above are the evidence for it.
"During good Behaviour" is a long sentence. It means a justice serves until they die, retire or are impeached and removed. [1] A justice appointed at fifty can sit for thirty years or more, through six or seven presidencies, long after the electorate that put the appointing president in office has changed.
That is a design choice from 1787, and it has a reasoned purpose: a judge who cannot be removed for an unpopular ruling can rule against the powerful. I believe that. I also believe it means the number of years a justice sits is, in practice, decided by luck, health and timing, not by a vote of the people the Court rules over. Both are true at once.
Two justices who show what disagreement on the Court can look like are Antonin Scalia and Ruth Bader Ginsburg. I did not always agree with Scalia, and he bent the arc anyway. During his twenty-nine years on the Court, originalism went "from a niche philosophy to a mainstay of conservative thought"; in 2013 he said that when Reagan appointed him in 1986 it "was not even worth talking about in serious academic circles." [12] His idea is the idea that the Constitution means what its words meant to the public who ratified them, and almost every constitutional argument now has to answer it, whichever side it comes from.
Ginsburg became a pop-culture icon, celebrated as "The Notorious RBG" on books, T-shirts and dolls, a nickname a law student coined by playing on the name of the rapper Notorious B.I.G. [13] When she died on September 18, 2020, hundreds gathered on the Court's steps that night with candles, flowers and her memorabilia. [14]
They were friends. They shared a love of opera. Scalia called her his best friend on the Court. Ginsburg said his dissents made her majority opinions better, and that he found "the weak spots," the "applesauce" and "argle bargle," that she then fixed. [15] Two readings of the same text, opposite on a great many cases, each making the other's work sharper. A law school now bears Scalia's name, and says it exists to expose students to "all viewpoints along the legal and political spectrum" and to teach them to argue "in a civilized and respectful way." [21] In my reading, that is what a court is for, and it is what makes the question that follows matter.
On November 13, 2023, the Court adopted its first Code of Conduct. The Congressional Research Service, summarizing it, says that like the code for lower-court judges, the justices' code "contains no enforcement mechanism," and that the law that gives lower-court judges a complaint process does not apply to Justices. [16] The Court's own statement says the code "largely represents a codification of principles that we have long regarded as governing our conduct." [16]
Congress has considered bills that would add one. One, the Supreme Court Ethics, Recusal, and Transparency Act of 2023, was introduced in the House. [17] The Senate Judiciary Committee's Democratic majority has said that Senate Republicans blocked a unanimous-consent request to pass Supreme Court ethics legislation. [18] That is a partisan source, so read it as the committee's account. I did not find that any such bill has become law.
The reading I take from this: every other federal judge is under a process that a person outside the courthouse can use. The nine justices are under their own judgment. Whether that is enough is a judgment the reader can make from the text of the code and the rules that exist.
The Court also decides a lot between its argued cases. Its emergency, or "interim," docket handles requests for fast relief. The term "shadow docket" was coined by the law professor William Baude in 2015; Justice Kavanaugh has said "interim docket" describes it better. [19] SCOTUSblog counted 136 applications in the 2024-25 term, 55 of them substantive. The Court granted relief in 53 percent of the substantive ones, up from 23 percent the term before, and the justices publicly disagreed in 76 percent, against a pre-2014 average of 13.5 percent. [19]
Here is the part that complicates the easy story. A written opinion accompanied 31 percent of the substantive applications, up from near zero in 2015-17 and 23 percent in 2023. [19] The Court is explaining itself more than it did. It is also deciding more of these, with higher stakes, and still explaining a minority of them: 69 percent had no written opinion. Justice Sotomayor, in a dissent reported by Bloomberg Law, wrote that the Court's "appetite to circumvent the ordinary appellate process and weigh in on important issues has grown exponentially. Its interest in explaining itself, unfortunately, has not." [20]
In my reading, that is the real question: not whether the interim docket is "shadow," but what decides which cases get argument and written reasons, and whether someone outside the Court can tell. Reasons given are a form of accountability. A reader who wants to check can start with the orders themselves, which the Court publishes, and ask the same question of each one.
Read the Court's decisions, not the headlines about them. The orders and opinions are public. The statutes that set the Court's size are public. The code of conduct is public. The ethics bills are public, with their sponsors and their status.
Three questions the record lets anyone ask. Who decided that the Court has nine members, and has anything changed that would lead a Congress to decide differently? Who sits on it, and who has never sat on it? And when it decides something that touches everyone, who can ask it to explain, and who can ask anyone else whether it was right?
I do not think the answers are obvious. I think the questions are the civic part of the education, the part that comes after knowing that the Court exists.
The account of how the author was taught, and the characterization of Justice O'Connor as quieter, are the author's own and cannot be independently sourced. "The least representative branch" is the author's argument, offered as an interpretation of the record. Some figures and quotations here come from secondary reports of primary documents, and the Court's own code of conduct was not available to the author in readable form; the reader is invited to check the primary texts. This is not legal advice.
Related: State Courts Handled 67.6 Million Cases in 2023. Federal Courts Handled 921,000. The Supreme Court Heard 73. covers how a case reaches the Court at all. It Took a Constitutional Amendment to Undo Dred Scott. It Took the Court Changing Its Own Mind to Undo Roe. covers how the Court's own rulings get reversed. The Faith of a Country follows the promise the Court is asked to keep, from the founding documents through the amendments. The Constitution Is 4,543 Words Long covers what the text itself says.