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Why are there 9 Supreme Court Justices? (And why have a Supreme Court at all?)

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With the Supreme Court ending its 2007-08 term last week, we thought now was a good time to answer some questions you probably weren't asking (but will nonetheless find interesting). The honorable David Holzel is presiding.

Why are there 9 Supremes?
There don't have to be—the Constitution doesn't specify—and there weren't always. The Federal Judiciary Act called for a chief justice and five associate justices. And the Court didn't settle into the current lineup of eight associates and a chief until the late 1860s.

A sixth associate was added in 1807, a seventh and eighth in 1837, and a ninth in 1863. Congress sought to restructure the Court during the contentious administration of Andrew Johnson, Abraham Lincoln's controversial successor. A law passed in 1866 called for a decrease in the number of associate justices from nine to six through the process of attrition. Seven associates still remained on the bench in 1869, when a law was passed to increase the number back to eight. By that time President Ulysses S. Grant had taken office.

That's how things stood until 1935, when a largely conservative Court unanimously overturned three of President Franklin D. Roosevelt's New Deal provisions. Roosevelt was reelected by a landslide the next year. So in 1937, he invested his political capital in making the court more liberal and, presumably, more enthusiastic about the New Deal.

Roosevelt proposed the "Judiciary Reorganization Bill of 1937" -- known ever since as "the Court-packing scheme." The Supreme Court would add one justice for every sitting justice over age 70. Roosevelt argued that the Court, with its six septuagenarians, wasn't up to the job. (In the current Court, six justices will be at least 70 by the end of 2008.)

The plan caused an uproar, even among Roosevelt's allies and, with the president refusing to give in, eventually died in Congress.

Is there a Jewish seat? An African-American seat?
The story goes that when Louis D. Brandeis sat on the Court, a fellow justice refused to sit in the same room with him. Brandeis was the Court's first Jewish justice, nominated by President Woodrow Wilson in 1916. From that time, until Justice Abe Fortas resigned from the bench in 1969, presidents always made sure there was at least one Jewish justice.

Similarly, after the retirement in 1991 of Thurgood Marshall, the first African-American justice, President George H.W. Bush nominated another African American to fill his seat—albeit the more conservative Clarence Thomas.

One reason President George W. Bush nominated Harriet Meiers was to have a woman succeed the retiring Sandra Day O'Connor, says Barbara A. Perry, professor of government at Sweet Briar College, in Virginia. Perry, author of A "Representative" Supreme Court? The Impact of Race, Religion, and Gender on Appointments, tells mental_floss that since the time of George Washington, presidents have sought "balancing representation" in their nominations.

"It was geographical balance then," Perry says. "Later, religious seats developed." And more recently, a seat for a woman and an African-American. To extend representation, "Bush really wanted to make Alberto Gonzales the first Hispanic justice." (Gonzales resigned as attorney general over the firings of federal prosecutors.)

"But once a group enters the mainstream, presidents feel less compelled to reach out to them. The other way you know is if members of a group fill multiple seats." In 1956, President Dwight D. Eisenhower nominated William Brennan, to ensure a Roman Catholic on the Court; today, of nine justices, seven are Catholics, including the chief justice. Another two are Jews.

Why is there a Supreme Court, anyway?
First, because the United States Constitution says so. Article III called for Congress to create a Supreme Court. But that doesn't entirely answer the question. The framers of the Constitution considered the lack of a high court as one of the chief weaknesses of the Articles of Confederation, which the Constitution was intended to replace.

"All nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice," Alexander Hamilton argued in support of a court that would be a co-equal branch of government with Congress and the presidency.

Unlike the limited terms assigned to officers of the other branches of government, Article III says the members of the Supreme Court "shall hold their Offices during good Behaviour"—essentially until they resign or die. It describes the Court's jurisdiction extending to "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority."

It took the Federal Judiciary Act of 1789 to bring the Supreme Court and federal district courts into existence. The Court's first session opened on Feb. 2, 1790, but the justices heard no arguments during their first three sessions. The Court didn't issue its first major decision until 1793 when, in Chisholm v. Georgia, it ruled the state of Georgia was not immune to a lawsuit from a citizen of another state. That decision was overturned by the 11th Amendment, ratified in 1795.

During their long periods of down time, the early justices were occupied with riding the muddy roads of the country, settling cases as circuit judges. Sitting on a circuit court is still part of a justice's job description.

How does the Supreme Court enforce its decisions?
On its own, it can't. With no army to back it up and dour expressions not being enough to ensure compliance, the Court must rely on the executive branch for support.

This was a big selling point when the Constitution was being shopped around in 1787. The judiciary, Alexander Hamilton wrote, "has no influence over either the sword or the purse"¦. It may truly be said to have neither FORCE nor WILL, but merely judgment." The Court, Hamilton said, would be "the least dangerous" branch of government.

denny-crane-bobblehead.jpgOyez? Oh yes? Oy Vey!
Denny Crane: It's our time, in The Great Hall, in front of the highest court in the country. Maybe the world. Be respectful, but kick ass. Be Alan Shore for all you're worth. And you know how they start these sessions? This clerk, this really pretty woman, she says, "Oh yes. Oh yes! Oh yes!" It's like sex, Alan!
Alan Shore: It's not, "Oh yes." It's, "Oyez."
Denny Crane: What?
Alan Shore: Oyez.
-- Boston Legal, "The Court Supreme"

There seem to be several ways to pronounce the archaic "oyez"—roughly meaning, "Hear ye!" After giving this call for silence, the marshal of the court announces: "All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this honorable court."

By law, the Supreme Court will begin its next term the first Monday in October.

Monday: What was Marbury v. Madison? And who were Roe & Wade? Tuesday: 8 Rejected Supreme Court Justices.

David Holzel is a freelance writer and has never said the word "oyez" out loud. He writes the ezine The Jewish Angle.
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10 Memorable Neil deGrasse Tyson Quotes
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Neil deGrasse Tyson is America's preeminent badass astrophysicist. He's a passionate advocate for science, NASA, and education. He's also well-known for a little incident involving Pluto. And the man holds nearly 20 honorary doctorates (in addition to his real one). In honor of his 59th birthday, here are 10 of our favorite Neil deGrasse Tyson quotes.


"The good thing about science is that it's true whether or not you believe in it."
—From Real Time with Bill Maher.


"As a fraction of your tax dollar today, what is the total cost of all spaceborne telescopes, planetary probes, the rovers on Mars, the International Space Station, the space shuttle, telescopes yet to orbit, and missions yet to fly?' Answer: one-half of one percent of each tax dollar. Half a penny. I’d prefer it were more: perhaps two cents on the dollar. Even during the storied Apollo era, peak NASA spending amounted to little more than four cents on the tax dollar." 
—From Space Chronicles


"Once upon a time, people identified the god Neptune as the source of storms at sea. Today we call these storms hurricanes ... The only people who still call hurricanes acts of God are the people who write insurance forms."
—From Death by Black Hole


"Countless women are alive today because of ideas stimulated by a design flaw in the Hubble Space Telescope." (Editor's note: technology used to repair the Hubble Space Telescope's optical problems led to improved technology for breast cancer detection.)
—From Space Chronicles



"I knew Pluto was popular among elementary schoolkids, but I had no idea they would mobilize into a 'Save Pluto' campaign. I now have a drawer full of hate letters from hundreds of elementary schoolchildren (with supportive cover letters from their science teachers) pleading with me to reverse my stance on Pluto. The file includes a photograph of the entire third grade of a school posing on their front steps and holding up a banner proclaiming, 'Dr. Tyson—Pluto is a Planet!'"
—From The Sky Is Not the Limit


"In [Titanic], the stars above the ship bear no correspondence to any constellations in a real sky. Worse yet, while the heroine bobs ... we are treated to her view of this Hollywood sky—one where the stars on the right half of the scene trace the mirror image of the stars in the left half. How lazy can you get?"
—From Death by Black Hole


"On Friday the 13th, April 2029, an asteroid large enough to fill the Rose Bowl as though it were an egg cup will fly so close to Earth that it will dip below the altitude of our communication satellites. We did not name this asteroid Bambi. Instead, we named it Apophis, after the Egyptian god of darkness and death."
—From Space Chronicles


"[L]et us not fool ourselves into thinking we went to the Moon because we are pioneers, or discoverers, or adventurers. We went to the Moon because it was the militaristically expedient thing to do."
—From The Sky Is Not the Limit


Perhaps we've never been visited by aliens because they have looked upon Earth and decided there's no sign of intelligent life.
Read more at:
Perhaps we've never been visited by aliens because they have looked upon Earth and decided there's no sign of intelligent life.
Read more at:

"Perhaps we've never been visited by aliens because they have looked upon Earth and decided there's no sign of intelligent life."


A still from Steven Spielberg's E.T. the Extra-Terrestrial
Universal Studios
"[I]f an alien lands on your front lawn and extends an appendage as a gesture of greeting, before you get friendly, toss it an eightball. If the appendage explodes, then the alien was probably made of antimatter. If not, then you can proceed to take it to your leader."
—From Death by Black Hole
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40 Fun Facts About Sesame Street
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Now in its 47th season, Sesame Street is one of television's most iconic programs—and it's not just for kids. We're big fans of the Street, and to prove it, here are some of our favorite Sesame facts from previous stories and our Amazing Fact Generator.

Sesame Workshop

1. Oscar the Grouch used to be orange. Jim Henson decided to make him green before season two.

2. How did Oscar explain the color change? He said he went on vacation to the very damp Swamp Mushy Muddy and turned green overnight.

3. During a 2004 episode, Cookie Monster said that before he started eating cookies, his name was Sid.

4. In 1980, C-3PO and R2-D2 visited Sesame Street. They played games, sang songs, and R2-D2 fell in love with a fire hydrant.

5. Mr. Snuffleupagus has a first name—Aloysius

6. Ralph Nader stopped by in 1988 and sang "a consumer advocate is a person in your neighborhood."

7. Caroll Spinney said he based Oscar's voice on a cab driver from the Bronx who brought him to the audition.

8. In 1970, Ernie reached #16 on the Billboard Hot 100 with the timeless hit "Rubber Duckie."

9. One of Count von Count's lady friends is Countess von Backwards, who's also obsessed with counting but likes to do it backwards.

10. Sesame Street made its Afghanistan debut in 2011 with Baghch-e-Simsim (Sesame Garden). Big Bird, Grover and Elmo are involved.

11. According to Muppet Wiki, Oscar the Grouch and Count von Count were minimized on Baghch-e-Simsim "due to cultural taboos against trash and vampirism."

12. Before Giancarlo Esposito was Breaking Bad's super intense Gus Fring, he played Big Bird's camp counselor Mickey in 1982.

13. Thankfully, those episodes are available on YouTube.

14. How big is Big Bird? 8'2". (Pictured with First Lady Pat Nixon.)

15. In 2002, the South African version (Takalani Sesame) added an HIV-positive Muppet named Kami.

16. Six Republicans on the House Commerce Committee wrote a letter to PBS president Pat Mitchell warning that Kami was not appropriate for American children, and reminded Mitchell that their committee controlled PBS' funding.

17. Sesame Street's resident game show host Guy Smiley was using a pseudonym. His real name was Bernie Liederkrantz.

18. Bert and Ernie have been getting questioned about their sexuality for years. Ernie himself, as performed by Steve Whitmere, has weighed in: “All that stuff about me and Bert? It’s not true. We’re both very happy, but we’re not gay,”

19. A few years later, Bert (as performed by Eric Jacobson) answered the same question by saying, “No, no. In fact, sometimes we are not even friends; he can be a pain in the neck.”

20. In the first season, both Superman and Batman appeared in short cartoons produced by Filmation. In one clip, Batman told Bert and Ernie to stop arguing and take turns choosing what’s on TV.

21. In another segment, Superman battled a giant chimp.

22. Telly was originally "Television Monster," a TV-obsessed Muppet whose eyes whirled around as he watched.

23. According to Sesame Workshop, Elmo is the only non-human to testify before Congress.

24. He lobbied for more funding for music education, so that "when Elmo goes to school, there will be the instruments to play."

25. In the early 1990s, soon after Jim Henson’s passing, a rumor circulated that Ernie would be killed off in order to teach children about death, as they'd done with Mr. Hooper.

26. According to Snopes, the rumor may have spread thanks to New Hampshire college student, Michael Tabor, who convinced his graduating class to wear “Save Ernie” beanies and sign a petition to persuade Sesame Workshop to let Ernie live.

27. By the time Tabor was corrected, the newspapers had already picked up the story.

28. Sesame Street’s Executive Producer Carol-Lynn Parente joined Sesame Workshop as a production assistant and has worked her way to the top.

29. Originally, Count von Count was more sinister. He could hypnotize and stun people.

30. According to Sesame Workshop, all Sesame Street's main Muppets have four fingers except Cookie Monster, who has five.

31. The episode with Mr. Hooper's funeral aired on Thanksgiving Day in 1983. That date was chosen because families were more likely to be together at that time, in case kids had questions or needed emotional support.

32. Mr. Hooper’s first name was Harold.

33. Big Bird sang "Bein' Green" at Jim Henson's memorial service.

34. As Chris Higgins put it, the performance was "devastating."

35. Oscar's Israeli counterpart is Moishe Oofnik, whose last name means “grouch” in Hebrew.

36. Nigeria's version of Cookie Monster eats yams. His catchphrase: "ME WANT YAM!"

37. Sesame's Roosevelt Franklin ran a school, where he spoke in scat and taught about Africa. Some parents hated him, so in 1975 he got the boot, only to inspire Gob Bluth’s racist puppet Franklin on Arrested Development 28 years later.

38. Our good friend and contributor Eddie Deezen was the voice of Donnie Dodo in the 1985 classic Follow That Bird.

39. Cookie Monster evolved from The Wheel-Stealer—a snack-pilfering puppet Jim Henson created to promote Wheels, Crowns and Flutes in the 1960s.

40. This puppet later was seen eating a computer in an IBM training film and on The Ed Sullivan Show.

Thanks to Stacy Conradt, Joe Hennes, Drew Toal, and Chris Higgins for their previous Sesame coverage!

An earlier version of this article appeared in 2012.


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