2 Basic Things about the Supreme Court You Thought Were in the Constitution

The Constitution Text (Article III 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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

There's some more, but it's just some technicalities about which court can hear which case. Actually, except for the part about "there shall be a Supreme Court," there's not much in Section 1, either. All that stuff you learned in elementary school was decided by Congress or just sort of happened and stuck. Am I missing something here??

9 Justices

No where in the constitution does it say anything about 9 justices. And it only mentions a Chief Justice in passing when talking about how to fire the President. Congress gets to decide the numbers, which begs the question of how separate the Judicial branch of the government really is.

It went from 6 to 7 in 1807, to 9 in 1837, to 10 in 1863, and back to 9 in 1869, where it's stayed since--but just barely.

Roosevelt didn't appreciate the court overturning a bunch of his New Deal laws during his first term, so he proposed a law that would "pack" the court with up to 15 judges. This law didn't make it through congress, but a retirement and death allowed Roosevelt to pick two new justices anyway. Before that, however, the court suddenly decided in favor of one of Roosevelt's laws, perhaps to play nice before something drastic happened... you can't always count on the rest of the government to play fair.

As Jackson was supposed to have said, "John Marshall has made his decision; now let him enforce it!"

Judicial Review

Congress and the President pass laws, and the Supreme Court rules them unconstitutional. Nice and balanced "separation of powers," except the fact that the constitution doesn't say anything about ruling laws unconstitutional, ie, "Judicial Review."

Here is my loose interpretation of how we ended up with the Supreme Court being able to throw out laws. (full story)

Back in 1800, life was crazy, and outgoing Secretary of State John Marshall just didn't find the time to deliver a last minute job appointment before starting his new job as Chief Justice. The guy that was supposed to get that job, Marbury, was in for a long wait, because the new Secretary of State (Madison) worked for the competing party, and didn't have any intention of delivering that job to the competition.

So Marbury sued and tried to get the Supreme Court to force Madison to deliver the job. This was a tricky case--if the Court told Madison to deliver the job, Madison might just ignore the Court, after which others might think it was a good idea to ignore the Court, too. Things were still very new, and the Supreme Court didn't exactly have an army to back it up, so it couldn't ruffle too many feathers.

On the other hand, if the new Chief Justice ruled in favor of Madison, it would look weak, and might be ignored in the future, too. Both choices were likely to severely weaken the court.

Marshall instead ruled that the original law Marbury was using wasn't constitutional, and therefore couldn't be used. So he didn't ask Madison to do anything he didn't want to do, didn't make the court look weak, and snuck in the power of judicial review for the Supreme Court. Apparently Congress listened to him and threw out the law in question. 

As this by itself seems somewhat magical, my best guess is that everyone sort of assumed the power of judicial review already, and that Marshall was just the first to put it into practice. More controversy is detailed at the marbury v madison wiki page.