Today, the first Monday in October, is a legally significant day. It’s the day the U.S. Supreme Court begins its term. But why the first Monday in October? It seems a random day for the beginning of the term. Actually, the start date for the Court is mandated by law. While the Court was established by the U.S. Constitution, Article III, Sec. 1 to be exact, the Judiciary Act of 1789 is what gave substance to the idea of the Court. The Judiciary Act set the number of justices and proscribed when the terms began. Originally, the Court had two sessions a year. Starting in 1791, the Court met on the first Monday of February, with the second session to begin on the first Monday in August. Over the years, the Court consolidated its two sessions and the Judiciary Act of 1802 formalized the idea of a single, annual term beginning on the first Monday in February. To deal with case backlogs, Congress moved the start of the term to the second Monday in January in 1826, and then in 1844 to the first Monday in December. The term was pushed back to the second Monday in October in 1873. In 1916, Congress moved the Court term’s start date from the second Monday in October to the current first Monday. The change was approved on September 6, 1916, as part of the act to redefine the Judicial Code and expand the number of appeals petitions considered by the Court. The new start date took effect in 1917. (28 U.S.C. § 2)
The timing of the start of the term isn’t the only thing changed over the years. The location of the Court, the duties of the justices, and even the number of justices has varied. The Court convened for the first time in 1790 in New York City, the then capital, on the first Monday in February. The Court, along with the rest of the federal government, moved to Philadelphia the next year. They finally settled in Washington, D.C. in 1800. Even so, the Court didn’t have its own building until 1935. No provision had been made for a Supreme Court building, so the Court met in the new Capitol building. The Court was to change its meeting place a half dozen times within the Capitol. Additionally, the Court convened for a short period in a private house after the British set fire to the Capitol during the War of 1812. Following this episode, the Court returned to the Capitol and met there from 1819 to 1860 in a chamber now restored as the “Old Supreme Court Chamber.” From 1860 until 1935, the Court sat in what is now known as the “Old Senate Chamber.” In 1929, Chief Justice William Howard Taft persuaded Congress to end this arrangement and authorize the construction of a permanent home for the Court. Construction began in 1932 and was finished in 1935.
The Supreme Court we know is an appellate court with extremely limited original jurisdiction. This wasn’t always the case. The Judiciary Act of 1789 required the justices to journey twice a year to distant parts of the country and preside over circuit courts. These circuit courts weren’t the same as our modern Circuit Courts of Appeals. They not only had appellate jurisdiction over the district courts, they had original jurisdiction for major federal crimes and civil suits involving diversity jurisdiction. The local district court judge would join the two justices in presiding over the circuit court. As you can image, the justices complained about the burden this much travel placed upon them. Congress relented in 1793; one circuit trip a year would be enough. Even though separate circuit court judges were created by the Judiciary Act of 1869 the practice of justices “riding the circuit” continued until 1911 and the passage of the Judicial Code of 1911. The justices still have responsibility for the circuits. Each justice is assigned one or two circuits. A circuit justice is primarily responsible for emergency requests (for example, an application to block an execution or allow it to go forward) from the geographic area covered by his or her circuit, as well as more mundane matters such as a request to extend the time to file a petition for review.
The idea that the number of justices could be increased by a new administration isn’t far-fetched. That number is under the control of Congress. The Judiciary Act of 1789 set the number at six: a chief justice and five associate justices. In 1807, Congress increased the number of justices to seven, Seventh Circuit Act of 1807 ; in 1837, the number was bumped up to nine, Eight & Ninth Circuit Act of 1837; and in 1863, it rose to ten, Tenth Circuit Act. In 1866, Congress passed the Judicial Circuits Act, which shrank the number of justices back down to seven to prevent President Andrew Johnson from appointing anyone new to the court. Three years later the Judiciary Act of 1869 raised the number of justices to nine where it has stood ever since. In an effort to create a Court more friendly to his New Deal programs, President Franklin Roosevelt attempted to convince Congress to pass legislation that would allow new justices to be added to the court, for a total of up to 15 members, for every justice over 70 who opted not to retire. The Judicial Procedures Reform Bill of 1937 did not pass.
Current news reports have highlighted the fact that an appointment to a federal judgeship, including as a justice of the U.S. Supreme Court, is a life-time appointment. In reality, more often than not Supreme Court justices retire. It is true that looking at the Court’s long history, slightly more than half of the justices died in office. The trend, though, is otherwise. The deaths of Antonin Scalia and Ruth Bader Ginsburg were relatively close (2016 and 2020 respectively). When, however, Chief Justice William Rehnquist died in 2005, his was the first death of a sitting justice since 1955. An analysis by Marquette University Law School Faculty blog in 2012 said that 38 of the 57 Supreme Court justices who served between the nation’s founding and 1900 died while in office, while 39 of the 46 justices who have served since 1900 left in retirement.
To round out this blog let’s look at some Supreme Court firsts:
First Justice – James Wilson, who took his oath on October 5, 1789.
First Chief Justice – John Jay who served from 1789-1792.
First case docketed – Van Staphorst v. Maryland, but the case was settled before oral argument (The Van Staphorst brothers lent money to the State of Maryland during the Revolutionary War era. Maryland refused to pay back the loan according to the terms the Van Staphorst brothers demanded. After the threat of Supreme Court litigation, the parties finally settled.)
First opinion – West v. Barnes, 2 U.S. 401 (1791). (The Court decided the case on procedural grounds, holding that a writ of error (an appeal) must be issued within ten days by the Clerk of the Supreme Court of the United States as required by federal statute, and not by a lower court located closer to the plaintiff in Rhode Island. As a result of this case, Congress ultimately changed this procedure with the ninth section of the Judiciary Act of 1793 allowing circuit courts to issue these writs, thereby assisting citizens living far away from the capital.[4])
First (and only) justice to be impeached – Samuel Chase, who was accused of letting his partisan leanings affect his court decisions. While he was impeached by the House, he was not convicted in the Senate
First Jewish justice – Lewis Brandis, who took his oath on June 5, 1916
First African-American justice – Thurgood Marshall, who took his oath on September 1, 1967
First female justice – Sandra Day O’Connor, who took her oath on September 25, 1981
First Hispanic justice – Sonia Sotomayor, who took her oath on August 8, 2009
First (and last) live streamed Supreme Court oral argument – on May 5, 2020 the Court resumed hearing cases postponed due to the pandemic with telephone conference calls. The Court permitted certain media outlets to have access to the calls which were broadcast in real-time.