The Supreme Court

US Politics Fundamentals

Chapter 4 · The Supreme Court & Judicial Review

Chapter 1's own concept-grid described Article III in a single line: establishes "one supreme Court" and lets Congress create lower federal courts. This chapter unpacks that Article for real — the Court's genuinely fluid real size, its lifetime-tenure design, a real and very recent chapter in the Chapter 3 filibuster story, and the single power that makes US judicial review something the UK's own judiciary, as UK Politics Fundamentals Chapter 6 established, simply does not have.

Nine Justices — But Not Because the Constitution Says So

The Supreme Court has nine justices today, and it feels like a fixed, permanent number — but Article III never actually specifies a size at all. Congress sets it by ordinary law, and has changed it repeatedly across US history: the original Judiciary Act of 1789 set the Court at six justices; Congress expanded it to seven in 1807, nine in 1837, and ten in 1863, before settling on the current nine in the Judiciary Act of 1869. It has stayed at nine ever since — a real, ordinary-law figure now unchanged for over 150 years.

Finding: the same "fixed by ordinary law, not the Constitution" pattern as Chapter 3 This is structurally identical to Chapter 3's own finding about the House: 435 seats isn't written into the Constitution, it's a number Congress fixed by ordinary statute in 1929 and simply never revisited. The Supreme Court's nine seats work the exact same way — a real historical number, adjustable by a simple act of Congress, that has nonetheless held steady through sheer convention for a century and a half.

That number has been directly, deliberately tested once. In 1937, facing a Court that had struck down several of his New Deal programs, President Franklin D. Roosevelt proposed adding a new justice for every sitting justice over 70 who declined to retire — a plan that could have expanded the bench to as many as fifteen. It failed decisively: the Senate rejected it 70–20, with FDR's own party leading the opposition. The Senate Judiciary Committee itself called rejecting the plan "essential to the continuance of our constitutional democracy." The number has stood at nine, purely by convention, ever since.

Lifetime Tenure: "During Good Behaviour"

Article III, Section 1 gives federal judges — Supreme Court justices included — tenure "during good Behaviour," understood in practice to mean a genuine lifetime appointment: a justice serves until death, retirement, resignation, or removal by impeachment, with no fixed term and no reappointment process at all. This is a deliberate design choice for judicial independence — a justice who never has to face re-election or reappointment has no electoral incentive to rule a particular way to stay in office.

Appointment: A Real, Recent Chapter in the Filibuster Story

The Constitution's own appointment process is simple: the President nominates, and the Senate must confirm. But how the Senate confirms a nominee has changed significantly within living memory, and it directly continues Chapter 3's own filibuster-and-cloture material.

Date	Who	What changed
21 November 2013	Senate Democrats, led by Harry Reid	Lowered the cloture threshold from 60 votes to a simple majority for executive-branch and lower federal judicial nominees — explicitly excluding the Supreme Court
6 April 2017	Senate Republicans, led by Mitch McConnell	Extended that same change to Supreme Court nominations specifically, triggered by a Democratic filibuster of nominee Neil Gorsuch — removing the 2013 carve-out entirely

A real, concrete example of Chapter 3's own point: Senate rules aren't the Constitution Chapter 3 established that the 60-vote cloture threshold is a Senate rule, not a constitutional requirement — and this is exactly what that means in practice. Both changes above were made the same way: a simple 51-vote majority overruling the presiding officer's own ruling on what the rules required, rather than a formal rule change under the Senate's usual two-thirds procedure. Since April 2017, every Supreme Court confirmation vote has needed only a simple Senate majority — the same 60-vote bar that killed Senator Chávez's 1946 bill in Chapter 3 no longer applies to Supreme Court nominees at all.

Removal: The Same Rare Impeachment Process

Chapter 2 covered how the President can be impeached and removed. Federal judges — including Supreme Court justices — go through the identical process: the House impeaches by simple majority, and the Senate convicts and removes by a two-thirds vote. It has happened to a Supreme Court justice exactly once: Samuel Chase, impeached by the House in 1804 on eight articles, was acquitted by the Senate and remained on the Court until his death in 1811. No Supreme Court justice has ever actually been removed from office by this process.

Judicial Review: A Power the Constitution Never Actually Wrote Down

Here is the real, load-bearing surprise at the center of this chapter: the Supreme Court's most consequential power — the ability to strike down a federal or state law as unconstitutional — appears nowhere in the Constitution's own text. It was established by the Court itself, in a single 1803 case.

Marbury v. Madison, 1803 William Marbury was one of nearly sixty Federalist judicial appointees — the "midnight judges" — commissioned by outgoing President John Adams in his final days in office (2–3 March 1801). The outgoing Secretary of State who signed and sealed Marbury's own commission was John Marshall — who, within weeks, became Chief Justice of the very Court that would decide his own case. Marshall's own commission was never delivered before Adams left office, and the incoming Secretary of State, James Madison, refused to hand it over. Marbury sued to force delivery. Marshall's opinion, delivered 24 February 1803, held that the law Marbury had sued under was itself unconstitutional — and along the way, declared the real, foundational principle: "It is emphatically the province and duty of the judicial department to say what the law is."

That single sentence, and the ruling built around it, is the entire origin of American judicial review. Nothing in Article III grants federal courts the power to void an Act of Congress — Marshall's own Court simply asserted that power was implicit in a written constitution that claims to be supreme law, and no later Congress or President has successfully overturned that precedent.

The Sharpest Contrast in This Course So Far

This is the point where US Politics Fundamentals and UK Politics Fundamentals diverge most completely. UK Politics Fundamentals Chapter 6 covered the UK's own real Constitutional Reform Act 2005 (creating the UK Supreme Court, opened 2009), Dicey's rule-of-law doctrine, and the real 2017 Miller I case — but that same chapter established, just as clearly, that UK courts cannot strike down an Act of Parliament. Under parliamentary sovereignty, Parliament's own law always wins.

	United States	United Kingdom
Can courts void a law?	Yes — the Supreme Court can strike down a federal or state law as unconstitutional (Marbury v. Madison, 1803)	No — under parliamentary sovereignty, courts cannot invalidate an Act of Parliament (UK Politics Fundamentals Ch.6)
Where does that power come from?	Not the Constitution's own text — asserted by the Court itself in 1803	N/A — the very idea is structurally excluded by parliamentary sovereignty
What is "supreme"?	The Constitution itself (Article VI's Supremacy Clause, Chapter 1) — even Congress's own laws answer to it	Parliament — the elected legislature, not any written document, is the ultimate authority
Real 2017 case	N/A this chapter — see Marbury, 1803, above	Miller I: the Supreme Court ruled Parliament, not the executive alone, had to authorize triggering Brexit

Finding: this is Chapter 1's own Article VI Supremacy Clause, fully realized Chapter 1 named the Supremacy Clause as making the Constitution and federal law "the supreme Law of the Land." Judicial review is the real mechanism that gives that clause teeth: without a court willing and able to actually strike down a conflicting law, "supreme law" would be a purely rhetorical claim. The UK has no equivalent because it has no equivalent claim to make — Parliament, not a written document, is what UK Politics Fundamentals Chapter 6 already established as the country's real supreme authority.

Hands-On Exercises

Exercise 1

Explain why the Supreme Court having nine justices is a matter of convention, not constitutional requirement — and what FDR's real 1937 court-packing attempt shows about how strongly that convention is actually defended.

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Exercise 2

Using the real 2013 and 2017 nuclear-option changes, explain how a Supreme Court confirmation vote today differs from what Chapter 3's own 60-vote cloture rule would otherwise require.

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Exercise 3

A US federal law and a UK Act of Parliament are each challenged in court as fundamentally unjust. Explain what a court can actually do in each country, and why the outcomes are structurally different rather than just a matter of different judges reaching different conclusions.

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Quick Reference

Size: 9 justices, fixed by ordinary law (Judiciary Act of 1869), not the Constitution — has ranged from 6 to 10 historically
FDR's 1937 court-packing plan: rejected 70–20 in the Senate, including by his own party
Tenure: lifetime, "during good Behaviour" (Article III)
Confirmation: President nominates, Senate confirms — by simple majority since April 2017 (previously required 60 votes to invoke cloture)
Removal: impeachment (House majority, Senate 2/3); only Samuel Chase (1804) ever impeached, and he was acquitted
Judicial review: not written into the Constitution — established by Marbury v. Madison (1803), Chief Justice John Marshall
Core contrast: US courts can strike down laws as unconstitutional; UK courts cannot override an Act of Parliament