Expanding The Supreme Court: Amendment Needed?

The number of Supreme Court Justices has changed several times in United States history. The Judiciary Act of 1789 established the first Supreme Court, with six Justices. The current number of nine Justices was set in 1869. While some scholars argue that a constitutional amendment is needed to place term limits on Supreme Court Justices, others argue that this can be done through an act of Congress. Adding a Justice requires the President and a majority in the Senate, in addition to new legislation to add a seat, which also requires majorities in the House and the Senate, and the President's concurrence.

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The number of justices has changed six times without a constitutional amendment

The number of Supreme Court Justices has changed six times without a constitutional amendment. The Judiciary Act of 1789 established the first Supreme Court, with six Justices. In 1801, President John Adams and a lame-duck Federalist Congress passed the Judiciary Act of 1801, which reduced the Court to five Justices in an attempt to limit incoming President Thomas Jefferson's appointments. Jefferson and his Democratic-Republicans soon repealed that act, restoring the Court to six Justices. In 1807, Jefferson and Congress added a seventh Justice when they added a seventh federal court circuit. In early 1837, President Andrew Jackson added two additional Justices after Congress expanded the number of federal circuit court districts. During the Civil War in 1863, Congress created the 10th Circuit, and the Court briefly had 10 Justices.

The Constitution does not specify the size or composition of the Supreme Court, leaving those questions to Congress. Congress first enacted legislation to structure the Supreme Court in the Judiciary Act of 1789. Over the years, various Acts of Congress have altered the number of seats on the Supreme Court, from a low of five to a high of 10. The current number of nine Justices was set in 1869, and this has remained unchanged since then.

While the number of Justices can be changed by passing an act through Congress and the President, other changes such as term limits or requirements would require a constitutional amendment. This is because the Constitution specifies that judges "shall hold their offices during good behaviour". However, there is ongoing debate about whether term limits could be implemented through an act of Congress, as there is no inherent requirement for a judge to be involved in the final decision of appeals from lower courts.

Congress can change the number of justices by passing an act

The number of seats on the Supreme Court is established by statute, and Congress has the power to change it by passing an act. The Constitution does not specify the size and composition of the Supreme Court, leaving those questions to Congress.

The Judiciary Act of 1789, enacted by Congress, established the first Supreme Court with six Justices. Since then, the number of seats on the Court has changed six times, ranging from a low of five to a high of ten. In 1869, Congress expanded the Court to include nine Justices, which remains the current number.

Changing the number of Justices does not require amending the Constitution. However, other changes, such as imposing term limits or altering the requirements for Justices, would necessitate a constitutional amendment.

Senator Marco Rubio proposed a constitutional amendment to permanently limit the Supreme Court to nine Justices. This proposal stems from concerns about the potential destabilization of essential institutions and the desire to prevent the delegitimizing of the Supreme Court. While some scholars advocate for term limits, the life term for Justices is specified in the Constitution, and any changes to it would require an amendment.

Imposing term limits would require a constitutional amendment

The number of Supreme Court Justices has changed several times in the past without requiring a constitutional amendment. However, imposing term limits on Supreme Court Justices is a different matter and is a highly complicated process.

The Constitution's Good Behavior Clause in Article III, Section 1, states that "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." This clause guarantees that Supreme Court Justices "shall hold their offices during good behaviour." This has been interpreted to mean that Justices can serve indefinite terms unless they are impeached.

Most legal scholars and commentators agree that imposing term limits on Supreme Court Justices would require amending the Constitution. This is because the life term of Justices is specified in the Constitution, and any changes to the makeup or requirements of the Court would necessitate an amendment. UC Berkeley Law School Dean Erwin Chemerinsky stated, "I strongly support 18-year term limits for Supreme Court justices, but I believe that this would require a constitutional amendment, especially if applied to current justices."

Some have proposed alternative methods to achieve term limits without a constitutional amendment. One idea is to utilize a process known as jurisdiction stripping, where Congress limits the Supreme Court's authority to its original jurisdiction. Another suggestion is to create a class of senior justices who are assigned work at the Chief Justice's discretion, effectively creating term limits. However, these proposals are uncertain and controversial, and the consensus is that the clearest path to establishing term limits is through a constitutional amendment.

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Removing a justice requires the same impeachment procedure as for the president

The number of Supreme Court Justices in the United States has changed multiple times over the years. The Judiciary Act of 1789 established the first Supreme Court, comprising six Justices. In 1801, the number was reduced to five, but this was repealed soon after, restoring the Court to six Justices. Subsequently, in 1807, a seventh Justice was added, and in 1837, two additional Justices were included, bringing the total to nine. During the Civil War in 1863, the Court briefly had ten Justices. The current number of nine Justices was set in the Judiciary Act of 1869.

While there have been proposals to limit the Supreme Court to nine Justices through a constitutional amendment, it is important to note that the Constitution does not specify a fixed number. Congress has the authority to change the number of Justices by passing an act, which the President then signs into law. This process does not require amending the Constitution.

However, it is worth mentioning that the life term of Supreme Court Justices is specified in the Constitution. As per the text, judges shall hold their offices during good behaviour. Therefore, imposing term limits on Supreme Court Justices would require a constitutional amendment.

Now, turning to the removal of a Supreme Court Justice, the process is the same as that for impeaching the President. The House of Representatives has the sole power of impeachment and must pass articles of impeachment by a simple majority vote. This is followed by an impeachment trial in the Senate, presided over by the Chief Justice of the United States in the case of a president's impeachment. For the removal of a Justice or the President, a two-thirds majority in the Senate is required.

The constitution does not specify the size and composition of the Supreme Court

The US Constitution establishes a federal judiciary with a Supreme Court at its apex. Article III, Section 1 of the Constitution states:

> "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."

This provision assumes the existence of a Chief Justice, who presides over presidential impeachment trials in the Senate. However, the Constitution is notably silent on several other matters concerning the Supreme Court, including its size and composition. This silence leaves room for Congress to shape these aspects of the Court through legislation.

The Judiciary Act of 1789, enacted by Congress, was the first legislation to structure the Supreme Court. This Act established a Supreme Court with six justices and created the lower federal court system. Since then, the number of seats on the Supreme Court has fluctuated between five and ten justices. The current number of nine justices was set in 1869, when Congress expanded the Court during the Civil War.

The size of the Supreme Court can be altered by passing a law, as the number of justices is set by statute. However, any changes to the requirements or terms of justices would necessitate a constitutional amendment. This distinction is crucial, as it underscores the flexibility afforded to Congress in structuring the Supreme Court while also recognising the need for more stringent procedures when modifying the fundamental characteristics of judicial positions.

Senator Marco Rubio has proposed a constitutional amendment to permanently fix the number of Supreme Court justices at nine. This proposal stems from concerns about the potential destabilisation of essential institutions and the desire to prevent the delegitimising of the Supreme Court. While some scholars advocate for term limits for Supreme Court justices, such a change would require a constitutional amendment due to the current lifetime appointments outlined in the Constitution.

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