- the connection between the Court’s organization and deeper structural concerns (e.g., the connection between the Justices’ circuit-riding duties, the size of the Court, and regional representation); and
- the relationship between the Court and politics.
Here, we trace the history of debates over potential reforms to the Supreme Court from the early national period through the twentieth century. The discussion proceeds chronologically in order to explicate the ways in which the themes just mentioned shaped, and were shaped by, changing conceptions of the Court’s role in the American constitutional system.
II. The Origins of the Supreme Court: The Constitution and the Judiciary Act of 1789
The Court’s origins are inextricably bound up with existential questions concerning the structure of the judicial power of the United States. On March 4, 1789, the new government created by the Constitution began operating. Many elements of the system remained uncertain and disputed despite the preceding twenty-two months of discussion and drafting, first in the Constitutional Convention and then in the state ratifying conventions.[5] The Constitution’s beginning raised a host of new questions, the stakes of which were understood to be tremendously high.[6]
Chief among the issues still to be settled were the scope of the federal judicial power and the practical details of how that power would function. Article III of the Constitution established the Supreme Court. But the drafters of the Constitution had been unable to agree on key points—most importantly, whether to create inferior federal courts, what types of cases the federal courts would be able to hear, and what sort of relationship the Supreme Court would have with the state courts.[7] The Constitution was also silent on the number of Justices who would sit on the Court. The drafters therefore left to Congress the task of addressing many of these questions as it saw fit, subject to the boundaries set forth in Article III.[8] The drafters’ decision to postpone the question of the inferior federal courts has been termed by modern commentators the “Madisonian Compromise.”[9]
When the First Congress convened in New York’s Federal Hall in April 1789, its members immediately began debating a bill to establish the federal courts. “The importance of the judiciary bill was obvious to contemporary observers both inside and outside Congress,” according to several historians.[10]
