jurisdiction us-supreme-court judge judiciary uk-supreme-court
Panel of Judges in Supreme Court - Odd number?
<p>In Supreme Court, the panel of judges will always be a odd number? 3,5,7,9 so the decision in terms of votes count verdict will always outcome a result and not a tie?<img src="https://i.stack.imgur.com/3nbdF.jpg" alt="enter image description here" /></p>

<p>The UK Supreme Court (as you tagged in the question) uses an odd number for this exact reason. A recent case, <a href="https://www.supremecourt.uk/cases/docs/uksc-2021-0160-judgment.pdf" rel="nofollow noreferrer"><em>Attorney General v Crosland</em> [2021] UKSC 58</a>, further explains:</p>
<blockquote>
<p>it is a very common feature of appeals in the UK generally that the
appellate court consists of a larger panel than the court appealed from. It not
infrequently happens that a party to an appeal to the Supreme Court wishes the court
to depart from an earlier decision of the Supreme Court or of the House of Lords. In
such a case the practice is for the appeal to be heard by an enlarged panel of seven or
more justices, precisely to clothe it with that greater authority</p>
</blockquote>
<p>The statute establishing this Court <a href="https://www.legislation.gov.uk/ukpga/2005/4/section/42" rel="nofollow noreferrer">provides</a>:</p>
<blockquote>
<p>The Supreme Court is duly constituted in any proceedings only if all of the following conditions are met—</p>
<p>(a) the Court consists of an uneven number of judges;<br>
(b) the Court consists of at least three judges;<br>
(c) more than half of those judges are permanent judges.</p>
</blockquote>
<p>(with the possibility of some deviation in special circumstances). This practice was previously followed in the House of Lords, before being made statutory when the Supreme Court was formed. The UK court does not sit <em>en banc</em>, partly because there are twelve permanent judges and that is an even number, and partly because the legal tradition hasn't held it to be worthwhile. An exceptional case was <a href="https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf" rel="nofollow noreferrer"><em>R (Miller) v Secretary of State for Exiting the European Union</em> [2017] UKSC 5</a>, heard by eleven judges - a record! - which happened to be the entire Supreme Court at the time, since there was one vacancy. A panel of nine was used in <a href="https://www.bailii.org/uk/cases/UKHL/2003/68.html" rel="nofollow noreferrer"><em>Attorney General's Reference (No. 2 of 2001)</em> [2003] UKHL 68</a>, for the first time since <em>R v Ball</em> [1911] AC 47. Smaller numbers are more typical, such as five.</p>
<p>For the Supreme Court of the United States, there are nine judges but they do not use panels. It is fairly common for some judges to recuse themselves because they had been involved with proceedings at a lower stage, or if there is a vacancy, and so there are cases where there are an even number of judges actually involved. The US court also has a practice of fairly complex patterns of concurring and dissenting opinions, with justices potentially joining more than one opinion, so it can be subtle to identify where the majority position really lies. It is therefore possible for there to be a tie. If there is a tie on appeal, then the lower court's decision stands, without precedential effect. For  matters within the <em>original jurisdiction</em> of the Supreme Court, there is <a href="https://www.jstor.org/stable/40389434" rel="nofollow noreferrer">no consensus</a> on what is meant to happen - see <a href="https://law.stackexchange.com/questions/7126/what-happens-if-the-us-supreme-court-ties-4-4">What happens if the US Supreme Court ties 4-4?</a> for more.</p>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" rel="tag">united-states</a></p>
<p>The US Constitution provides for a Supreme Court, but does not specify its size. Therefore the size of the Court has varied through US history, being set by Congress in relevant laws.</p>
<p>When the US Supreme Court was fist established by the <a href="https://en.wikipedia.org/wiki/Judiciary_Act_of_1789" rel="nofollow noreferrer">Judiciary Act of 1789</a> it had six members, the Chief Justice and five Associate Justices. This was [reduced to five in 1801](Judiciary Act of 1869), but the authorized number was restored to six by  the <a href="https://en.wikipedia.org/wiki/Judiciary_Act_of_1802" rel="nofollow noreferrer">Judiciary Act of 1802</a>. As the act of 1801 only reduced the size of the court when a vacancy occurred, and none did before the passage of the 1802 act, the court was not in practice reduced to five justices. (Incidentally the 1801 act was also the cause of the dispute in <em>Marbury vs Madison</em>.) The reduction to five in the `1801 act was a political ploy by the outgoing Federalists, indented to reduce the number of appointments that President Jefferson would be able to make.</p>
<p>The Court was expanded by later acts of Congress: to seven Justices in 1807, yo tine in 1837, and to ten in 1863. Then in the <a href="https://en.wikipedia.org/wiki/Judicial_Circuits_Act" rel="nofollow noreferrer">Judicial Circuits Act of 1866</a> Congress enacted that the next three justices to retire or die would not be replaced, leaving the authorized size of the court at 7. (This act was intended to reduce the power of President Andrew Johnson, giving him little chance of appointing a Justice.) Under this Act one position was removed in 1866, and a second in 1867, reducing the Court to eight members. After President Grant took office, the <a href="https://en.wikipedia.org/wiki/Judiciary_Act_of_1869" rel="nofollow noreferrer">Judiciary Act of 1869</a> set the number of Justices to nine. It has not subseque3ntl;y been changed, although a proposal to expand the court further under President Franklin Roosevelt was much debated. That proposal was known as the <a href="https://en.wikipedia.org/wiki/Judicial_Procedures_Reform_Bill_of_1937" rel="nofollow noreferrer">&quot;court-packing plan&quot;</a> because it was intended to appoint enough Justices to outvote the conservative majority who had struck down several major parts of the Roosevelt  &quot;New Deal&quot;. It never passed Congress.</p>
<p>From the start of the US Supreme Court, the members <a href="https://en.wikipedia.org/wiki/Circuit_riding" rel="nofollow noreferrer">rode circiut</a>. This meant the during part of the year a justice would be assigned to travel through a judicial district known as a &quot;circuit&quot;, and sit with local Federal Judges to hear appeals from lower court cases. This made the job of a Justice strenuous, and limited the tiem the full court could sit at the Capital. The expanding size of the US put pressue on this systemn, which was a major reason for the expansion of the court from six to ten over the periodf from 1807 to 1866. Circuit riding was significantly reduced by the <a href="https://en.wikipedia.org/wiki/Judiciary_Act_of_1891" rel="nofollow noreferrer">Judiciary Act of 1891</a> and abolished by the <a href="https://en.wikipedia.org/wiki/Judicial_Code_of_1911" rel="nofollow noreferrer">Judicial Code of 1911</a>. The US Courts of Appeals  are still known informally as the Circuit Courts, and their areas of authority as Circuits.</p>
<p>The US Supreme Court, unlike some national supreme courts, (and unlike the US Courts of Appeals) does not divide into smaller panels to consider cases. Every case that it decides is considered by all currently sitting Justices, except when one declines to participate in a case (known as recusal). (The normal procedure is that a justice must have been present at oral argument to vote on a case. Occasionally a case is reargued to allow a new Justice to participate.) Each circuit has one Justice assigned to it, who hears certain motions such as for stays of judgement coming from that circuit, or refers them to the full Court. But Justices no longer sit with other Federal Judges.</p>
<p>The US Supreme Court has thus had various sizes from six to ten over its history, and since 1869 has on a number of occasions been reduced to eight or fewer members when one or more vacancies were awaiting new Justices. There does not seem to have been a strong feeling that the court must have an odd number of members. Most of the changes in court size have been political ploys to gain an advantage in Court rulings, or were due to the demands of the circuit riding system.</p>
<p>When the US Supreme court is tied (which can now occur when the court has eight members, or when a Justice is recused from a case) the lower court decision stands. If the tie is due to a vacancy and the case is considered an important one, it may be held over for a new Justine to be seated, in which case it will be reargued with the new Justice taking part.</p>
<p><em>See the Wikipedia article  <a href="https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States#Size_of_the_court" rel="nofollow noreferrer">&quot;Supreme Court of the United States&quot;</a> and sources cited there for more detail on this.</em></p>
