The Green Papers
The Green Papers
Historical Data

Explanation of certain items in the
"Justices of the Supreme Court" Table

Thu 10 May 2001



Article III of the United States Constitution starts off with the following provision [Section 1]:

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.

Notice that the Constitution says absolutely nothing about the size and composition of the Supreme Court (in fact, the only reference to a particular Justice of the Court in the entire document is found, not in Article III, surprisingly- but in Article I, Section 3, clause 6 where, in reference to the Senate's power to sit as a Court of Impeachment, the Constitution mandates that "[w]hen the President of the United States is tried, the Chief Justice shall preside"!); thus, it was left entirely within the power of Congress (subject, of course, to its acts being signed into law by the President or, if vetoed by him, each house of Congress overriding said Veto) to fill in pretty much the entire framework of the Federal Judiciary. (Notice, too, that- theoretically- Congress could have solely provided for a Supreme Court which would have had some original Federal jurisdiction, yes [one would have to assume that Congress would- in exercising its own Powers under the new Constitution- pass at least a limited number of Federal laws related to various civil and criminal matters], but which would primarily have heard cases on final appeal [via Writ of Error] from the highest courts of the several States [just as the British Privy Council had once served as the final appellate court for the then-still American Colonies prior to the Revolution]. Congress, however, decided to create a system of Federal Courts that would, much like the County Courthouse in the county seat was a local symbol of ultimate State sovereignty, make the Federal Courthouse(s) in each State a local reminder [second only, perhaps, to the much more ubiquitous Post Office] of the existence of a new Federal Government.)

The first Judiciary Act- passed by the First Congress toward the end of its first, so-called "Quorum" session and signed into law by President Washington on 24 September 1789- originally created three levels of Federal Courts with, of course, the constitutionally mandated Supreme Court as the third, topmost level; unfortunately (and with long-term effects on the Terms of Court when the Supreme Court would meet), this same Act would only provide for two types of Federal Judges. There were 11 States in the Union at the time (North Carolina and Rhode Island- among the "Original 13"- had yet to ratify the Constitution) and these were apportioned into 13 Districts (each State forming a District with exceptions re: Maine, then a separate portion of the Commonwealth of Massachusetts, and Kentucky, then the westernmost portion of Virginia [which almost everyone knew would, soon enough, become a State], each of which would have such a District apart from that in their respective parent States), each such District having a "District Judge" who would hold a "District Court"- as the Federal court of general trial jurisdiction would be known- within his District in so-called "quarter session" (that is, 4 times a year). Meanwhile, there would be a Chief Justice and 5 "Associate Justices" of the Supreme Court; so far, so good...

The problems would ensue with the middle level of the new Federal Judiciary: the so-called "Circuit Courts", which would function as the Federal court of intermediate appellate jurisdiction- between the District Courts below and the Supreme Court above. The 11 Districts based on States per se were grouped into "Circuits" (New Hampshire, Massachusetts [without Maine], Connecticut and New York would form the "Eastern Circuit"; New Jersey, Pennsylvania, Delaware, Maryland and Virginia [sans Kentucky] would make up the "Middle Circuit"; while South Carolina and Georgia would make up the "Southern Circuit"); Maine and Kentucky- like the non-State colloquially named "Northwest Territory"- would, even though they were parts of States, have direct appeal to the Supreme Court in matters which would have otherwise gone first to the Circuit Courts.

The Circuit Court for each Circuit would each consist of two Supreme Court Justices from the States within the Circuit (the Chief Justice merely being "first among equals" for Circuit Court purposes) and the District Judge of the District wherein the Circuit Court happened to be sitting; in addition, any two of the three Federal judges- in their capacities as "Circuit Justices" and "Circuit Judge", respectively- would constitute a quorum to hear cases as said Circuit Court. Though the Judiciary Act of 1789 provided that "no District Judge shall give a vote in any case of appeal or error from his own decision, but may assign the reasons of such his decision", a quorum of merely one of the two Circuit Justices and the District Judge as Circuit Judge would, in most cases, be able to decide nothing- a glaring defect of the Circuit Court system that would not be finally corrected for over a century (though Congress would slowly begin to address these problems in 1869, the entire Circuit Court system was not permanently overhauled until 1891).

But, beyond such a defect, there was the burden- given the poor transportation of a world without railroads or even paved roads, let alone automobiles or airplanes- of a Supreme Court Justice having to "ride Circuit" twice a year (the Judiciary Act of 1789 provided for a set schedule of Circuit Courts being held in each of the Federal Court Districts from April into May and again from October into November each calendar year). The Act clearly recognized this, as leaving Maine and Kentucky out of the Federal Circuits altogether indicates an awareness of the great hardships imposed on Circuit-riding Justices by physical distance. When North Carolina and Rhode Island finally ratified the Constitution within a year of the adoption of the Judiciary Act of 1789, these States were easily shoe-horned into the Southern and Eastern Circuits, respectively: likewise, when Vermont became the 14th State and received its own District Court, it- too- was assigned to the Eastern Circuit; however, when Kentucky finally became the 15th State, followed by Tennessee as the 16th State (with its own District Court), these- like Massachusetts' separate "District of Maine"- remained as much outside the Circuit Court system as the Territorial Courts of the growing number of western Territories as the 18th Century drew to a close- again, a recognition of the limits as to how far a Justice could travel while "riding Circuit".


Thus, the Terms of holding the Supreme Court en banc were directly related to scheduling the high Court's sessions so as to best effect the duties of its Justices to "ride Circuit" in the Spring and the Fall. Thus, the Supreme Court was to, like the Circuit Court in each District, meet twice a year- beginning on the first Monday in February and again on the first Monday in August. It is very clear that these dates were picked because they marked the beginning of two quarters of the calendar year, the other two of which (early May and early November) were right smack dab in the middle of the Justices' "Circuit riding season". From February 1790, when the Court had its first quorum (though, as the highest appellate court in a new Federal System in which even its lower courts were still getting themselves organized, there was no judicial business to transact in that very first Term of Court other than the appointment of clerks and admitting various attorneys to the bar of the Supreme Court itself), through August 1801, this schedule of Terms of Court was followed.

The defects of the Circuit Court system (inability to effect an appellate decision when said Circuit Court consisted solely of one Supreme Court Justice and one District Judge, the burdensome nature of the Justices having to "ride Circuit" in such poor traveling conditions) soon became apparent enough and measures were often proposed- but never adopted- in Congress to rectify them (there was a certain feeling- even among the centralizing Federalists- that "riding Circuit" would keep the Justices of the Supreme Court from becoming too distant from the more local levels of the Federal Court system; those who yet remembered the Revolution had no real desire to create a new "Privy Council" seemingly as distant as the original had been prior to that Revolution). However, when increased judicial efficiency could also be seen as potentially politically advantageous, the momentum to correct the defects of the Circuit Court system correspondingly increased.

In the Elections of 1800, the Federalists lost political control of the Federal Government for the first time: the incoming Administration taking office would be Republican, as would the House of Representatives; the new Senate would be, at best, just barely Federalist. But the Federalists saw a way to maintain influence in the political structure for some time to come: this being through the lifetime tenure (during "good behavior") of Federal judges- and so, on 13 February 1801, while the outgoing Federalist House was embroiled in controversy over just which Republican- Jefferson or Burr- would become President come the following 4 March, outgoing Federalist President John Adams signed into law a new Judiciary Act in which, as one historian of the American judicial system so well and succinctly put it, "combined thoughtful concern for the Federal Judiciary with selfish concern for the Federalist Party".

The Judiciary Act of 1801- exhibiting the "thoughtful concern for the Federal Judiciary" aspect of the new structure- created 23 Districts for District Courts (previously, there were 17 in the 16 States of the Union [Maine still having a District Court separate from that of the Massachusetts of which it was yet a part]) by dividing New York, New Jersey, Pennsylvania, Virginia, North Carolina and Tennessee into two Districts apiece. It then created six numbered Circuit Courts (Maine, New Hampshire, Massachusetts and Rhode Island= the First Circuit; Vermont, the 2 New York Districts and Connecticut= the Second Circuit; the 2 New Jersey Districts, 2 Pennsylvania Districts and Delaware= the Third Circuit; Maryland and the 2 Virginia Districts= the Fourth Circuit; the 2 North Carolina Districts, South Carolina and Georgia= the Fifth Circuit; Kentucky, the 2 Tennessee Districts plus the 2 Territories of the "old Northwest"- Ohio and Indiana= the Sixth Circuit); looking- some two centuries [!] later, no less- at a map of the Circuits currently in use by the modern U.S. Circuit Court of Appeals, it is actually stunning how close the first five Circuits are in area to today's 1st, 2nd, 3rd, 4th and 11th Circuits, while the sixth corresponds to today's 6th and 7th Circuits combined!! One can only wonder how much better- and, perhaps, fairer- the Federal Courts would have functioned so long ago had the 1801 Judiciary Act not been primarily the product of underhanded political chicanery.

For the system itself had been changed for the better: the eastern five Circuits were each to have a bench of 3 Circuit Judges (the sixth- the westernmost, being on the frontier at that time- would have had only one); the Territories were, for the first time, to be subject to Circuit Court jurisdiction (only the recently formed Mississippi Territory [created in 1798] was left out of the new system- in part because it, as yet, had no significant [read "white" or "non-Indian"] population but also because Georgia would take another year to formally cede its claims to that Territory to the Federal Government)- Maine, too, was finally subject to Circuit Court jurisdiction. However, the biggest change of all was relieving the Justices of the Supreme Court from the burden of having to "ride Circuit"; because of this, the 1801 Act could now allow the Supreme Court to meet at different times of the year than heretofore- June and December, beginning in 1802 (it was thought that abolishing the August 1801 Term of the Supreme Court [the February Term of that year was already underway when the new Federalist Judiciary Act became law] would be too burdensome on litigants- as they otherwise would have to wait more than another year for a Supreme Court hearing). The 1801 Act also provided that some District Court decisions could now bypass the new Circuit Courts and go directly to the Supreme Court on "Writ of Error" (since the Supreme Court Justices, presumably, had more time on their hands now that "Circuit riding" had been abolished).

Unfortunately for the Federal Judiciary throughout most of the rest of the 19th Century, the benefits to the functioning of the Federal Courts in the new law were more than offset by the less-than-subtle benefits to the outgoing Federalist Party within its provisions. The 1801 Act reduced the number of Justices on the Supreme Court to five (the ostensible reason was that such a reduction in number was possible now that the Justices no longer had to "ride Circuit" [though they would, theoretically, remain "Circuit Justices" and be each assigned as such to one of the five eastern Circuits: though this was probably more an attempt to retain the requirement that the Court be made up of Justices from different regions of the Nation, a beneficial- at the time- side effect of having Justices "ride Circuit" which would now be lost]- however, the fact that- after the next vacancy on the Court- Thomas Jefferson would, thus, have one less Justice to appoint was not lost on either Federalists or Republicans!) and, at the same time, immediately increased the number of Federal judges the Federalists yet had a few weeks to appoint by 22 (6 new District Judges and the 16 newly-established Circuit Judges)- the origin of the infamous so-called "Midnight Judgeships" and, ultimately, the legal controversy behind the case of Marbury v. Madison.

On 8 March 1802, the Republicans- firmly in control of the White House and the 7th Congress- repealed what they derisively called the "Midnight Judge Law"; this immediately restored the status quo ante (17 District Courts, not 23; no Circuit Judges; Territories, Maine and the westernmost States outside the Circuits; Justices once again "riding Circuit" in the old 3-Circuit system as before). Then the Republicans set about creating their own Judiciary Act of 1802. On 29 April 1802, this new Act became law: recognizing the merit of having more than 3 Circuits, it- like the Federalist Act- created 6 numbered Circuits, but only the eastern States would be part of these new Circuits (New Hampshire, Massachusetts, Rhode Island= the First Circuit; Vermont, New York, Connecticut= the Second Circuit; New Jersey, Pennsylvania= the Third Circuit; Delaware, Maryland= the Fourth Circuit; Virginia and North Carolina= the Fifth Circuit; South Carolina, Georgia= the Sixth Circuit; Maine, Kentucky and Tennessee- along with the Territories- would remain, for the time being, outside the Circuit Court system). The 1802 Act also added two new Districts- by retaining the 1801 Act's division of North Carolina and Tennessee- but no other States would be so divided (it was thought that dividing New York, New Jersey, Pennsylvania and Virginia would merely add to the burdens of Supreme Court Justices "riding Circuit").

Each of the six Circuits would now hold Circuit Courts twice a year in each District with a single Supreme Court "Circuit Justice" (which would be how the 1802 Act would keep the number of Justices at six) and the District Court judge as "Circuit Judge" forming said Circuit Court. To offset the obvious problem that, if a Circuit Justice were to overrule the District Court's original decision (presumably, the District Judge would defend his original decision), there would otherwise be no decision, the 1802 Act provided that the two could allow (and, in Federal criminal cases, were actually mandated to send) the case to be certified to the full Supreme Court for review- this being the backbone of the "Writ of Certiorari" which, over time, would come to supplant the "Writ of Error" as the primary means of getting a case heard before the Supreme Court. But the 1802 Act also contained one troubling provision which would prove to be troublesome: it gave the Supreme Court Justice the option of "non-attendance" by permitting the District Court Judge to sit alone as his District's Circuit Court if the Circuit's Supreme Court Justice was not present (or if there happened to be a vacancy in that "Circuit Justice"'s Supreme Court seat at the time the case had been appealed). In civil cases, therefore (at a time when the vast majority of criminal cases were handled by State courts- there being a minimum of Federal criminal law in the early 19th Century), the District Judge could rule in a case, uphold his own ruling on appeal (as Circuit Judge absent a Circuit Justice) and subsequently refuse to send it to the Supreme Court on "Writ of Certiorari"; this would tend to make the notion of appeal from a Federal District Court to the Circuit Court more and more ludicrous.

In an attempt to lighten the twice-yearly burden of "riding Circuit" (as well as to give the Justices of the Supreme Court at least some time off during the height of Summer- not to say to encourage, rather than discourage, the Justices to not implement their option of "non-attendance" re: Circuit Court sessions in the Spring and Fall), the Judiciary Act of 1802 restored the February Term (to begin on the first Monday in February) but permanently abolished the August one; from now on, the Supreme Court would meet in annual Terms of Court instead of twice a year. Of course, the Republicans were not themselves above including a beneficial political component in their legislation: under the now-repealed 1801 Judiciary Act of the Federalists, the next Term of Court for the Supreme Court after the completion of the August 1801 Term was to have been that of June 1802; now, under the Republican replacement Judiciary Act, this Term was nonexistent and- it being after February 1802 by the time the new Act became law (and with no more August Term)- the next time the Supreme Court would meet would be February 1803, beneficial to the Republicans because the high Court had already agreed to hear oral argument on Marbury v. Madison with the now-canceled June 1802 Term. Unlike the Federalists, the Republicans had no problem with being "too burdensome on litigants" while the Supreme Court could not hold court en banc for nearly a year and a quarter.


Ohio became the 17th State of the Union (and the 20th Federal Court District) in 1803 but, like her sister "western" States- Kentucky and Tennessee- remained outside the Circuit Court system. 1803, however, also brought the Louisiana Purchase and- a year later- the creation, out of it, of the Territory of Orleans (roughly corresponding to today's State of Louisiana); clearly a seventh Circuit (which would automatically create a seventh Supreme Court Justice was needed) would soon be needed (indeed, Louisiana would become the 18th State- and 21st Court District- of the Nation as soon as 1812). Accordingly, on 24 February 1807, the new Circuit was added: Maine was finally brought under the Circuit Court by its being added to the First Circuit and a new Seventh Circuit covered Ohio, Kentucky and the 2 Districts of Tennessee (so all parts of States would, for the time being, now have Federal District Court cases within them appealed to a Circuit Court [for what that was worth!- see above]- but the Territories of the time [Indiana, Michigan, Mississippi and Orleans] would still have appeals from their respective Territorial Courts heard by the Supreme Court en banc [in effect, the Supreme Court was acting as "Privy Council" to the Territories as "colonies" of the United States of America]). Nevertheless, a sixth Associate Justice- who would also serve as "Circuit Justice" for the Seventh Circuit- was now added to the Supreme Court.

But new States were also being added: by 1837, 9 States had been admitted to the Union after Ohio and these States- while they would each have at least one Federal District Court- were not yet part of the Circuit Court system. So, on 3 March 1837, two new Circuits- the Eighth and Ninth- were added and the 32 District Courts (there were only 26 States [including Maine, a Federal Court District since 1789 but a State only since 1820] but six States, by now, had two District Courts each: New York, Pennsylvania, Virginia, South Carolina, Alabama and Louisiana: interestingly, the two States which had remained divided between two Districts under the Judiciary Act of 1802- North Carolina and Tennessee- each once again had only one District Court by 1837) were brought under the Circuit Court system (the first six "eastern" Circuits remained as they had been ever since the 1802 Act; Michigan, Illinois, Indiana and Ohio formed the reconfigured Seventh Circuit [incumbent "Circuit Justice" John McLean being from Ohio]; Kentucky and Tennessee joined Missouri in the new Eighth Circuit; while Alabama, Mississippi, Louisiana and Arkansas formed the new Ninth Circuit). Two new Associate Justices were added to the Supreme Court in order to give the two new Circuits a "Circuit Justice", bringing the total number of Justices on the high Court beginning in 1837 to the now-familiar nine (though there is still much more to the story behind the current number of Supreme Court Justices, as we shall soon see!)


In 1826- before the two new Circuits were added- there was the first serious effort, spearheaded by pro-Adams Republican Daniel Webster of Massachusetts, in a quarter century to relieve the Supreme Court Justices of "riding Circuit"; Justice Todd (whose Seventh Circuit had required him to cover nearly 3500 miles on bad roads twice every year) had recently died and there were many in Congress who felt that "riding Circuit" had shortened his life. But, once again, politics intervened: the anti-Adams Republicans, led by Senator Martin Van Buren of New York, didn't want to give President John Quincy Adams an opportunity to appoint any new Federal Judges before their champion, Andrew Jackson, could win the White House they felt he had been wrongfully deprived of. The only relief for the Justices of the Supreme Court was moving the convening of the Term of Court up to the second Monday in January: this was in response to complaints that the Supreme Court had to complete its old February annual term by the end of March in order to give the Justices time to get out of Washington for Circuit Court duty and that, as the Court's business increased, there simply was not enough time to clear the cases on the docket.

Similar complaints nearly two decades later (after two new Circuits had been created, mind you!) led to the Act of 17 June 1844 which would, effective in 1845, move the start of the Court's Term up to the first Monday in December (interestingly- and totally by coincidence- the same day the Constitution mandated as the latest possible convening of the annual "regular" ["long" and "short"] sessions of Congress). The 1844 Act also included a provision which only required the Supreme Court Justices to attend Circuit Court sessions in each District as "Circuit Justice" during one of the two sessions each calendar year; hereafter, the Justices tended to opt out of the Spring Circuit Courts ("riding Circuit" only in the Fall), staying in session en banc until as late as May to clear the Supreme Court's docket: the Supreme Court would now not only be meeting two months earlier than it had only 20 years earlier but would also be holding court up to two months later! However, this also meant that- in the Spring Circuit Courts in each District from now on- the District Judge would almost certainly be the only "Circuit Judge" hearing appeals from his own decisions, a fact which made even more of a mockery of the Federal Circuit Court as an appellate judicial body.


At the start of the DECEMBER 1859 Term of the Supreme Court (the last full Term of Court before the clouds of Secession and Rebellion would fully gather), these were the "Circuit Justices" for each of the 9 Circuits created back in 1837:

FIRST CIRCUIT (Me., Mass., N.H., R.I.)- Justice Nathan Clifford of Maine
SECOND CIRCUIT (Conn., N.Y., Vt.)- Justice Samuel Nelson of New York
THIRD CIRCUIT (N.J., Pa.)- Justice Robert C. Grier of Pennsylvania
FOURTH CIRCUIT (Del., Md.)- Chief Justice Roger B. Taney of Maryland
FIFTH CIRCUIT (N.C., Va.)- Justice Peter V. Daniel of Virginia
SIXTH CIRCUIT (Ga., S.C.)- Justice James M. Wayne of Georgia
SEVENTH CIRCUIT (Ill., Ind., Mich., Ohio)- Justice John McLean of Ohio
EIGHTH CIRCUIT (Ky., Mo., Tenn.)- Justice John Catron of Tennessee
NINTH CIRCUIT (Ala., Ark., La., Miss.)- Justice John A. Campbell of Alabama

The Territories were still outside the Circuit Court system- but so were District Courts in 7 new States admitted to the Union since the above 9 Circuits were first organized as such back in 1837, District Courts which, like the Territorial Courts, theoretically had direct appeal to the Supreme Court en banc.

A year later, as the DECEMBER 1860 Term was underway, South Carolina seceded from the Union- setting in motion a chain of events that would culminate in the firing on Fort Sumter four months later. Justice Daniel had died by then and President Buchanan had, so far, been unable to fill the vacancy, what with the fractured political climate found in a disagreeable Senate of a disintegrating Union. By the time Fort Sumter was fired upon by the forces of the newly established Confederate States of America, the Supreme Court had wrapped up this Term of Court, a 34th State (the 8th since 1837)- Kansas- had been admitted with yet another District Court outside the Circuit Court system, the States of two whole Circuits (the Sixth and the Ninth) had seceded (with those of a third whole Circuit- the Fifth of the late Justice Daniel- about to follow suit), Justice McLean had also died and Justice Campbell of the Ninth Circuit was about to tender his resignation out of loyalty to the new Confederacy (but the Sixth Circuit's Justice Wayne stayed loyal to the Union at the price of exile from his home State of Georgia). There were now three vacancies on the Supreme Court for the newly inaugurated President Lincoln to fill- but two of these were in Circuits which were no longer considering themselves part of the Union!

Filling Justice McLean's vacancy on the Court was not much of a problem- the late Ohioan was replaced by another Ohioan, Noah Swayne; however, as the Civil War dragged on, it soon became apparent that the 9 Circuits had to be reconfigured if Lincoln were going to fill the other two vacancies (Daniel's and Campbell's). Accordingly, on 15 July 1862, Congress passed an Act reorganizing the 9 Circuits (and, at the same time, bringing 32 of the 34 States of the Union- yes, 34: the Union was not about to recognize the secession of the 11 Confederate States as having anything approaching legality!- under the Circuit Court system); after this, President Lincoln was able to fill the two vacancies on the Court with Northerners who were from States within the newly defined Circuits. On a map that, in places, would have made any proponent of a Reapportionment Gerrymander proud, these were the 9 "Circuit Justices" who met for the Supreme Court's DECEMBER 1862 Term (seceded States of the Confederacy in boldface):

FIRST CIRCUIT (Me., Mass., N.H., R.I.)- Justice Nathan Clifford of Maine
SECOND CIRCUIT (Conn., N.Y., Vt.)- Justice Samuel Nelson of New York
THIRD CIRCUIT (N.J., Pa.)- Justice Robert C. Grier of Pennsylvania
FOURTH CIRCUIT (Del., Md., N.C., Va.)- Chief Justice Roger B. Taney of Maryland
FIFTH CIRCUIT (Ala., Fla., Ga., Miss., S.C.)- Justice James M. Wayne of Georgia
SIXTH CIRCUIT (Ark., Ky., La., Tenn., Tex.)- Justice John Catron of Tennessee
SEVENTH CIRCUIT (Ind., Ohio)- Justice Noah H. Swayne of Ohio
EIGHTH CIRCUIT (Ill., Mich., Wis.)- Justice David Davis of Illinois
NINTH CIRCUIT (Ia., Kan., Minn., Mo.)- Justice Samuel F. Miller of Iowa

On 3 March 1863, Congress belatedly passed an Act that created a TENTH CIRCUIT for California and Oregon; President Lincoln appointed Stephen J. Field of California to the newest seat this created on the Supreme Court. All 34 States (including those of the Confederacy) were now under Circuit Court jurisdiction, though the Territories remained outside it (a 35th State added later that year- West Virginia- was part of the reconfigured Fourth Circuit in any event; not until Nevada was admitted to the Union as the 36th State in 1864 would a State with a Federal District Court once again be outside the Circuit Court system); meanwhile, the Nation's highest Court was the largest in size it would ever be.


In April 1865, the Civil War ended and President Lincoln was assassinated; at the end of the following month, Justice Catron- who had served since his Court seat had been created in 1837- died. In the opening salvos of the battles between the so-called "Radical Republicans" who controlled Congress and the new President, Andrew Johnson, over the course and pace of what was called "Reconstruction" of the 11 defeated, once-seceded States of a now-defunct Confederacy, the Senate repeatedly blocked attempts by Johnson to fill the vacancy. Then, on 23 July 1866, Congress passed a law reducing the membership of the Supreme Court to seven as vacancies should occur: the ostensible, legal reason for this was because pretty much three of the then-ten Circuits within the Federal Court system were now under military occupation (thus, so the reasoning went, one only needs seven "Circuit Justices" for the time being); however, the real- read "political"- reason was to prevent President Johnson from appointing any Supreme Court Justices (three vacancies- for all intents and purposes, Catron's old Court seat had been abolished- would now have to occur in order for the President to be able to appoint even one Justice to the Court). As it happened the only vacancy to occur during the remainder of Johnson's Administration was that caused by the death of Justice Wayne (loyal to the Union to the last- but dying a bitter foe of Congress' version of Reconstruction) in 1867. The Court was now down to eight members- 5 of whom (including the current Chief Justice, Salmon Chase) had been the appointees of the late President Lincoln (whom the Radicals apotheosized in death, even as they gleefully gutted his "with malice toward none" Reconstruction strategy).

This, however, would only prove to be temporary: on 4 March 1869, Ulysses S. Grant- the hero of the Civil War- was sworn in as President. During the first so-called "Extra" session of Congress of the new Grant Administration (which the previous Congress itself had called: this was during the attempt [largely as a result of the political battles over Reconstruction] to establish what historian [and future President] Woodrow Wilson would come to call "Congressional Government", during which Congress unsuccessfully attempted to make the Executive [and, for that matter, the Judiciary] responsible to itself in a kind of "quasi-parliamentary" system), a law was passed (signed by President Grant on 10 April 1869) which altered the Federal Court system and restored the Supreme Court to nine members, a number at which it has remained ever since. After his original appointee to the restored ninth seat was rejected, Grant appointed Justice Joseph Bradley of New Jersey.

There would now be 9 Circuits, with the following "Circuit Justices" as members of the Supreme Court (as they were late in the DECEMBER 1869 Term):

FIRST CIRCUIT (Me., N.H., Mass., R.I.): Justice Nathan Clifford of Maine
SECOND CIRCUIT (Conn., N.Y., Vt.): Justice Samuel Nelson of New York
THIRD CIRCUIT (Del., N.J., Pa.): Justice William Strong of Pennsylvania
FOURTH CIRCUIT (Md., N.C., S.C., Va., W. Va.): Chief Justice Salmon P. Chase of Ohio
FIFTH CIRCUIT (Ala., Fla., Ga., La., Miss., Tex.): Justice Joseph Bradley of New Jersey
SIXTH CIRCUIT (Ky., Mich., Ohio, Tenn.): Justice Noah H. Swayne of Ohio
SEVENTH CIRCUIT (Ill., Ind., Wis.): Justice David Davis of Illinois
EIGHTH CIRCUIT (Ark., Iowa, Kan., Minn., Mo., Neb.): Justice Samuel F. Miller of Iowa
NINTH CIRCUIT (Calif., Nev., Ore.): Justice Stephen Field of California

The Territories remained outside the Circuit Court system (only so-called "Indian Country" [the bulk of what is now Oklahoma- it was not yet the organized Indian Territory of the late 19th Century into the early 20th] was included and that was only because it was yet unorganized and, therefore- with no Territorial Court of its own- it was attached to the westernmost of Arkansas' two District Courts) but all 37 States (Nebraska had been admitted in 1867) were. More importantly, the Act of 1869 created a system by which- as new States were admitted- they would be automatically added to these 9 Circuits (as they became States, Colorado, the Dakotas, Wyoming, Utah, Oklahoma and New Mexico would be added to the Eighth Circuit; meanwhile, Washington, Montana, Idaho and Arizona would be added to the Ninth). The reason for this change was that the 1869 Act also, for the first time (and finally!), permanently created the office of Circuit Judge (one for each of the 9 Circuits); the Circuit Courts would now consist of any two of the following: the District Judge in the District in which the Circuit Court happened to be sitting, the new Circuit Judge or the "Circuit Justice" of the Supreme Court. The "Circuit Justice" was now only required to attend one twice-a-year term of the Circuit Court every two years (that is, one in four Circuit Court sessions); this did not completely eliminate the Justices "riding Circuit", nor did it completely solve the problem of a District Judge reviewing his own decisions in Circuit Court (since he would have to be one of the two Circuit Judges absent a Supreme Court Justice), but it was a step in the right direction.

There was one other important change: note- from the listing earlier- that the Fourth and Fifth Circuits in 1870 had "Circuit Justices" who were not from States within those Circuits. The simple fact is that, in the midst of the Reconstruction era, there were no Justices to be had from the South to act as "Circuit Justices" for the new Fifth Circuit, so the 1869 Act provided that the senior Justice from a State within a Circuit would serve that Circuit; other Justices from the same Circuit would serve other Circuits which had no Justice from the States within them (thus, Justice Strong- commissioned a month ahead of Justice Bradley- got to be "Circuit Justice" of the Third Circuit, leaving Bradley the Fifth Circuit then still being "reconstructed". There is an interesting historical footnote to this: Bradley would become the deciding 15th vote on the temporary Electoral Commission which would ultimately come to decide the "Disputed Election" of 1876 in favor of the Republican Hayes over the Democrat Tilden- two of the disputed States [Florida and Louisiana] were within Bradley's Circuit; one has to wonder how much- along with partisan politics- this factoid came into play re: how he made his decisions as an "Electoral Commissioner" in the late Winter of 1877). Meanwhile, a tradition was established that the Chief Justice- no matter from whence he hailed- would be the "Circuit Justice" for the Circuit surrounding the Nation's Capital (the Fourth Circuit) [though, as a practical matter- when the Act of 1869 passed- a healthy chunk of that Circuit was still being "reconstructed" as well; having the Chief Justice as its "Circuit Justice"- since Chief Justice Chase was from the same Circuit as Justice Swayne- was the most logical solution].

In 1873, Congress once again changed the start of Terms of the Supreme Court- moving the starting date up to the second Monday in October to help the Court clear their annual docket of an increasing amount of cases. This change would have only been possible with the "one-in-four" provision of the 1869 Act re: Supreme Court Justices "riding Circuit" (as this new date removed any possibility of a Justice attending the Fall Circuit Court sessions).


In 1887, due to a crush of appellate business in that Circuit as a result of the increase in litigation involving business (particularly in the business capital of the Nation at the time, New York City), the Second Circuit alone was given a second Circuit Judge (for the first time ever, it was now possible to hold a Circuit Court in at least one Circuit without a District Judge whose rulings were being appealed being present). Four years later came the Evarts Act which created a new intermediate appellate court in the Federal system- the still extant Circuit Court of Appeals: each Circuit would now get an additional Circuit Judge (the Second Circuit would now have three!) and a 3-judge court would now hold this new Circuit Court of Appeals in each District within the Circuit, such court to be made up of 2 Circuit Judges and either (as was usual) the District Judge of the District in which the Circuit Court was held or a Supreme Court Justice still "riding Circuit" (yet no longer subject to the "one-in-four" provision of the 1869 Act, as the second Circuit Judge now made the physical presence of a "Circuit Justice" largely unnecessary). It was the beginning of the end of the old system, as Supreme Court Justices would now pretty much be able to almost always opt out of "riding Circuit" (though they would still- then, as now- technically serve as "Circuit Justice" for purposes of issuing temporary injunctions, stays of execution and other emergency rulings pending possible subsequent intervention by the full Supreme Court in a given matter).

The old Circuit Courts limped on (still held twice a year by one of the two Circuit Judges and a District Judge) for another two decades, despite the creation of the new Circuit Court of Appeals in 1891, as more or less a second "special" trial court supplementing the regular trials in the District Courts. But the number of District Court Judges in the more judicially active Districts had been increasing to the point where these Districts could, by 1903, begin to hold 3-judge District Courts in lieu of what was now called the "old Circuit Court" (to distinguish it from the more up-to-date Circuit Court of Appeals). The 1911 Judicial Code passed by Congress finally abolished this "old Circuit Court" once and for all and firmly codified the Circuits as they were originally conceived in the 1869 Act; a year later, as already outlined earlier, all 48 States of the contiguous Continental United States had been automatically assigned, upon admission to the Union of the last 11, to one of the 9 Circuits now solely the domain of a true Federal Court of intermediate appellate jurisdiction (the current map of the Circuit Court of Appeals was also pretty much already in place: in the early years under the 1911 Code, the Eighth Circuit would be divided in two, creating a new Tenth Circuit; much more recently- in the late 20th Century- the old Fifth Circuit has been divided in two as well, creating a new Eleventh Circuit; the Territories were also finally brought under the Circuits as well: Alaska and Hawaii were added to the Ninth Circuit as Territories and remain part of that Circuit as States, while the remaining Territories and Dependent Commonwealths are also now under the Circuit system- the District of Columbia has its own Circuit Court of Appeals and the other non-State jurisdictions of the United States have been assigned to one of the now-11 Circuits outside of D.C; all this has only been possible since the number of Circuits has ceased to have any connection whatsoever with the size of the Supreme Court since 1911).

The 1911 Judicial Code also permitted the Supreme Court to determine its own Terms of Court under its own rules (this was another change made possible only because there would no longer be any functional, legal connection between the Supreme Court and the Circuits [other than the aforementioned occasional emergency intervention of a Supreme Court Justice in his capacity as- only technically- a "Circuit Justice" for a given Circuit]) . In 1917, the Supreme Court exercised its new authority and moved the start of its Term up to the present (and rather well-known) first Monday in October ; thus, the current pattern of the court meeting in October, hearing oral argument on cases in which they have granted "Writs of Certiorari" (either from the Circuit Court of Appeals or from the highest court of a State- but only where a Federal constitutional issue is involved) in the Fall going into the Winter and then issuing their decisions (along with Court, concurring and dissenting opinions regarding the law of those decisions) through the Spring before adjourning the Term in mid-to-late June going into July, as the caseload permits, was now well-established.

The other side effect of the final separation of the Supreme Court Justices from the Federal Circuits is that a President is no longer required to take the residence of a Justice into account when making appointments to the high Court. This, of course, goes back to Northerner Justice Bradley's service as the "Circuit Justice" of a South in reconstruction; Presidents still would try to choose Justices in order to, as much as was practicable, have a Justice from each Circuit throughout the late 19th Century on into the 20th (since, theoretically, the Justices were still eligible to "ride Circuit" even after the Evarts Act of 1891), but the final divorcement of the Supreme Court from the Circuits under the 1911 Judicial Code no longer made such geographic considerations necessary.

In 1900, for example, each Circuit still had a Justice from it on the Supreme Court with the exception of the Fourth (which Chief Justice Fuller- though from Illinois- traditionally served as "Circuit Justice" due to his office); meanwhile, the first John Marshall Harlan of Kentucky served his own Sixth Circuit, while a second, less senior Justice from the Sixth Circuit- Henry Brown of Michigan- served the Chief Justice's home Seventh Circuit. By 1920, however, there were two Justices from the First Circuit (Holmes and Brandeis) and three from the Sixth (Day, McReynolds and Clarke): the only Deep Southerner on that Supreme Court was Chief Justice White and, when he died the following year (to be replaced by former President Taft), there were to be no Deep Southerners on the Court; as a quick perusal of the "Justices of the Supreme Court" table will tell, nor was there any attempt to appoint any (the Administrations of the 1920s were Republican, the Deep South of that time solidly Democratic- the disentanglement of the Supreme Court from the Circuits meant that political, not geographic, considerations would, from now on, hold greater sway). Today's Court (that meeting in the Spring of 2001) is made up of Justices whose home States represent only 6 of the current 11 Circuits outside of D.C.


Judicial Branch
United States Supreme Court Justices (current)
Justices of the United States Supreme Court (by Term of Court)
Federal Court System
Federal, State, and Local Government - Judicial Branch

Created Thu 10 May 2001. Modified .