Expanding The Supreme Court: Constitutional Or Overreach?

The Supreme Court of the United States has been at the centre of several controversies, with many calling for its expansion to restore its legitimacy and balance. The number of Supreme Court justices is not fixed by the Constitution, and Congress can change it by passing an act. However, the process of expanding the court is politically challenging and has been characterised as court-packing. While some argue that expansion is necessary to protect the rights and freedoms of Americans, others believe it is a politically motivated move that could lead to retaliation and further destabilisation of the institution. The debate surrounding the expansion of the Supreme Court highlights the ideological divide in Congress and the country.

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The number of Supreme Court justices is not fixed by the Constitution

> "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 means that Congress has the power to change the number of justices by passing an act, which would then need to be signed by the President. This process would not require a constitutional amendment, although some scholars believe that an amendment would be necessary to place term limits on Supreme Court justices.

There have been several recent attempts to expand the Supreme Court, with Senator Ed Markey and Representative Johnson proposing legislation in 2023 to add seats to the Court and restore its legitimacy. This proposal, known as the Judiciary Act, has gained support from civil liberties, education, reproductive health, climate, and labor organizations, as well as leaders in Congress and advocacy organizations. Supporters of court expansion argue that it is necessary to root out corruption and extremism, protect rights and freedoms, and restore balance and legitimacy to the Court.

However, court expansion is politically contentious. Some argue that it would be seen as a politically motivated move and could lead to retaliation and further conflict. Additionally, there are concerns that expanding the court could set a dangerous precedent, with one side attempting to "pack" the court when they are in power.

Congress can change the number of justices by passing an act

The number of justices on the Supreme Court is not set in stone. While it has remained at nine since 1869, there is no constitutional rule that dictates this number. In fact, the number has changed seven times throughout US history.

The US Constitution grants Congress the power to make changes to the court system, with Article III, Section 1 stating:

> "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 means that Congress can indeed change the number of justices by passing an act, which would then need to be signed by the President. This process is often referred to as "court-packing".

In 2023, Senator Ed Markey and Representative Johnson, along with other lawmakers, proposed the Judiciary Act to expand the Supreme Court and "restore its legitimacy". The act aimed to add four seats to the Court, bringing the total number of justices to thirteen. This expansion was proposed as a response to the Court's conservative majority, which had been accused of undermining various rights and freedoms, including abortion rights and voting rights.

However, the idea of court-packing is not without controversy. Some view it as a politically-motivated move that could lead to retaliation and further destabilization of the institution. Additionally, it faces significant political hurdles, requiring bipartisan support and the President's signature.

Adding justices can be seen as politically motivated

Adding justices to the Supreme Court can be seen as a politically motivated move, as it could be used to ""pack"" the court with judges of a particular political leaning. This could lead to a ""tit-for-tat"" retaliation, with each political party attempting to gain an advantage by adding more justices of their own ideology when they are in power. This could result in a never-ending cycle of court-packing, ultimately undermining the legitimacy and independence of the Supreme Court.

Historically, there have been instances where presidents have attempted to add justices to the Supreme Court to further their political agenda. For example, in 1937, President Franklin Roosevelt proposed adding more justices to the Supreme Court who agreed with him, in what was known as the "court-packing plan". This plan was seen as an attempt to sway the court in favour of his New Deal legislation, which faced constitutional challenges. While Roosevelt's plan did not succeed, it set a precedent for using court expansion as a political tool.

More recently, there have been similar proposals to expand the Supreme Court by adding justices. In 2023, Senator Ed Markey and Representative Johnson, along with other lawmakers, reintroduced the Judiciary Act to expand the court. They argued that the Supreme Court had become a "rogue, radical" institution that needed to be rebalanced to protect fundamental rights and freedoms. However, critics might view this as a politically motivated attempt to counter the conservative majority on the court, particularly after decisions such as the overturning of Roe v. Wade.

The potential political motivations behind adding justices to the Supreme Court are further highlighted by the existence of alternative reform proposals. One such proposal is the TERM Act, which suggests establishing 18-year term limits for justices, with a new justice appointed every two years. This approach aims to depoliticize the confirmation process by reducing disparities in the number of appointments each president makes and decreasing political tensions during nomination periods. However, the TERM Act has faced challenges in gaining bipartisan support, indicating that even reforms intended to reduce political influence on the court can become entangled in political disagreements.

While adding justices to the Supreme Court may be seen as a politically motivated action, it is important to recognize that the number of justices is not fixed in the Constitution. Congress has the power to change the number of justices by passing an act, which has occurred seven times throughout US history. However, given the potential for political retaliation and the risk of undermining the court's legitimacy, any expansion of the Supreme Court should be approached with caution and a focus on maintaining the independence and integrity of the judicial system.

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Court expansion is supported by civil liberties, reproductive health, and climate organisations

Court expansion has been a topic of debate, with some arguing that it is necessary to restore fairness, integrity, and respect for the rule of law. Since the Judiciary Act of 2023 was introduced in 2021, civil liberties, reproductive health, and climate organisations have supported the movement to expand the Court.

The Act proposes 18-year terms for Supreme Court justices, with new justices taking the bench every two years. This aims to ensure that decisions are based solely on law and fact, reducing political tensions during nomination periods. However, some argue that court expansion is politically motivated, and could lead to retaliation and increased political conflict.

Civil liberties organisations, such as the American Civil Liberties Union (ACLU), have long recognised personal privacy and reproductive rights as fundamental constitutional liberties. They have been involved in numerous Supreme Court cases dealing with reproductive freedom, and continue to fight for reproductive justice.

Reproductive health organisations, like NARAL Pro-Choice America, emphasise the need to protect reproductive freedom and fundamental rights. They argue that court expansion is necessary to address the corruption and extremism that threatens democracy and reproductive rights.

Climate organisations, including the League of Conservation Voters, acknowledge that the Supreme Court routinely exacerbates environmental injustice. They support court expansion to address this issue and restore balance to the nation's highest court.

Overall, while court expansion is a contentious issue, civil liberties, reproductive health, and climate organisations believe it is necessary to uphold important freedoms, address injustices, and restore trust in the nation's judicial system.

Constitutional amendment is needed to place term limits on Supreme Court justices

The Constitution does not currently allow for term limits for Supreme Court justices, except for the President. Supreme Court justices have an indefinite term as per the Constitution. However, there have been calls for term limits to be imposed, with some arguing that this would require a constitutional amendment.

The TERM Act, for example, is a proposed bill that would establish 18-year terms for justices in active service on the Supreme Court. While justices would retain life tenure, which would preserve constitutional protections for judicial independence, they would primarily serve in an "active" capacity for a single, non-renewable term. Once the term ends, justices would continue to hold their office but would participate in cases only if called upon under certain circumstances. The Act's proponents argue that it would help ensure that the justices make decisions based solely on law and fact, depoliticizing the confirmation process.

Some legal scholars argue that term limits for Supreme Court justices would have to be instituted via constitutional amendment. However, others, including members of the Biden Supreme Court Commission, disagree and have endorsed congressional proposals to enact prospective Supreme Court term limits via statute. They argue that their proposal does not violate the "good behavior" clause of Article III of the Constitution, as future justices could keep their office for life but would move into "senior status" after 18 years. This interpretation of "senior status" has been almost universally accepted as constitutionally valid.

While it may be possible to impose term limits on the Supreme Court through a process known as jurisdiction stripping, this would not directly set limits on the Supreme Court but rather limit the Court's authority to a narrow scope of original jurisdiction.

Expanding the court is a separate but related issue that has also been proposed. However, this would likely be politically difficult and could lead to tit-for-tat retaliation. Any expansion of the court would need to be bipartisan to avoid further political conflict.

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