Congressional Control over the Supreme Court
Congressional research reportDec 6, 2023
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Congressional Control over the Supreme
Court
Updated December 6, 2023
Congressional Research Service
https://crsreports.congress.gov
R47382
SUMMARY
Congressional Control over the Supreme Court
The Constitution’s Framers structured the Constitution to promote the separation of powers and
protect the federal courts from undue influence by Congress and the executive branch. Among
the federal courts, the Constitution grants the Supreme Court special status. As a historical
matter, Congress has also traditionally recognized that the Supreme Court plays a unique role
within the constitutional system.
R47382
December 6, 2023
Joanna R. Lampe
Legislative Attorney
However, the Constitution does not impose complete separation between the judiciary and the
political branches. Although it establishes a federal judicial branch that is separate from the legislative and executive
branches and benefits from certain important protections, the Constitution also grants the political branches, and especially
Congress, substantial power to regulate and otherwise influence the federal courts. Supreme Court decisions and longstanding practice also establish that Congress has the power to regulate many aspects of the Supreme Court’s structure and
procedures.
Discussion of Supreme Court regulation and reform has attracted significant public attention at various points in American
history and has garnered renewed public attention in the past decade. Key areas of discussion include the Court’s procedures
for handling emergency litigation; concerns about politicization, both in the selection and confirmation of judicial nominees
and in the Court’s rulings; and some observers’ substantive disagreement with certain Court decisions.
Many prominent Court reform proposals from recent years fall into two main categories: those that would change the size of
the Supreme Court (sometimes called “court packing”) and those that would impose term limits or age limits for Supreme
Court Justices. Congress has broad authority to set or change the size of the Supreme Court through ordinary legislation, but
implementation of term or age limits would likely require a constitutional amendment. Some proposals would change the size
of the Court or modify Justices’ tenure while also making other structural changes, such as having Justices rotate between the
Supreme Court and the lower federal courts, dividing the Supreme Court into panels, or seeking to ensure ideological balance
on the Court. Those proposals might raise various constitutional questions on a case-by-case basis.
Legislators and commentators have also advanced other proposals to change the Supreme Court’s jurisdiction or procedures.
Prominent proposals include making changes to the Court’s motions docket (which some commentators call the “shadow
docket”); limiting the Court’s appellate jurisdiction over certain categories of cases (sometimes called “jurisdiction
stripping”); imposing voting rules on the Court, such as requiring the agreement of a supermajority of Justices before the
Court can declare a law unconstitutional; allowing Congress to override Supreme Court decisions; imposing new judicial
ethics rules for Justices or changing how existing rules including the November 2023 Code of Conduct for Justices of the
Supreme Court of the United States are enforced; and expanding transparency through means such as allowing video
recordings of Supreme Court proceedings.
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Congressional Control over the Supreme Court
Contents
Legal and Historical Background .................................................................................................... 2
Changes to the Size of the Supreme Court ...................................................................................... 5
History and Practice on the Size of the Court ........................................................................... 5
Constitutionality of Changes to the Size of the Supreme Court................................................ 7
Considerations for Congress ................................................................................................... 10
Changes to Supreme Court Justices’ Tenure.................................................................................. 13
History and Practice on Justices’ Tenure ................................................................................. 13
The Debate over Life Tenure................................................................................................... 16
Constitutionality of Legislation Modifying Life Tenure ......................................................... 18
Considerations for Congress ................................................................................................... 20
Term Limits by Constitutional Amendment...................................................................... 20
Age Limits by Constitutional Amendment ....................................................................... 22
Statutory Options .............................................................................................................. 22
Other Structural Changes to the Supreme Court ........................................................................... 23
Partisan Balance and Regularized Appointments.................................................................... 23
Rotation Between Courts and Supreme Court Panels ............................................................. 25
Changes to Supreme Court Jurisdiction and Procedures ............................................................... 26
Motions Practice: the “Shadow Docket” ................................................................................. 27
Limits on Jurisdiction.............................................................................................................. 32
Voting Rules and Congressional Override .............................................................................. 36
Judicial Ethics ......................................................................................................................... 39
Cameras in the Courtroom and Other Transparency Measures ............................................... 45
Contacts
Author Information........................................................................................................................ 46
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Congressional Control over the Supreme Court
he Constitution’s Framers structured the Constitution to promote the separation of powers
and, in particular, to protect the federal courts from undue influence by the political
branches—Congress and the executive branch.1 In the Federalist Papers, Alexander
Hamilton advocated for constitutional provisions designed to promote “the complete separation
of the judicial from the legislative power.”2 In reality, the Constitution does not impose complete
separation between the judiciary and the political branches. Instead, it establishes a federal
judicial branch that is separate from the legislative and executive branches and benefits from
certain important protections3 but also grants the political branches, and especially Congress,
substantial power to regulate and otherwise influence the federal courts.4
T
The political branches’ influence over the federal courts may take several forms. The President
and the Senate control the appointment and confirmation of federal judges, including Supreme
Court Justices.5 In addition, Articles I and II of the Constitution give Congress the power to
impeach and remove federal officers, including judges and Justices, for “Treason, Bribery, or
other high Crimes and Misdemeanors.”6 Beyond the authority to confirm and impeach individual
judges, Congress also has authority to structure the federal judiciary and set judicial procedures.7
This CRS Report provides legal analysis of the extent of, and limits on, Congress’s authority to
regulate or reform the Supreme Court outside the constitutional processes of judicial confirmation
and impeachment.8 Many prominent Court reform proposals from recent years fall into two main
categories: (1) those that would change the size of the Supreme Court9 and (2) those that would
impose term or age limits for Supreme Court Justices.10 As discussed below, Congress has broad
1 See, e.g., 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 44 (Max Farrand ed., 1911) (discussion of how
salary protection for judges could support judicial independence); id. at 429 (statement of Mr. Wilson, in discussion of
the Good Behavior Clause, that “Judges would be in a bad situation if made to depend on every gust of faction which
might prevail in the two branches of our Govt.”); cf. THE FEDERALIST NO. 78 (Alexander Hamilton).
2 THE FEDERALIST NO. 79 (Alexander Hamilton).
3 See Cong. Research Serv., Overview of Federal Judiciary Protections, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S1-10-1/ALDE_00013554/ (last visited Jan. 5, 2023).
4 See Cong. Research Serv., Overview of Congressional Control Over Judicial Power, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S1-5-1/ALDE_00013528/ (last visited Jan. 5, 2023); Cong.
Research Serv., Overview of Establishment of Article III Courts, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S1-8-1/ALDE_00013557/ (last visited Jan. 5, 2023).
5 Article II grants the President the power to appoint federal judges, including Supreme Court Justices, with the
“Advice and Consent” of the Senate. U.S. CONST. art. II, § 2, cl. 2. The Senate may opt to confirm or reject the
President’s nominees, including for political reasons, or it may choose not to act on them. See generally Cong.
Research Serv., Appointments of Justices to the Supreme Court, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artII-S2-C2-3-5/ALDE_00013096/ (last visited Jan. 5, 2023).
6 U.S. CONST. art. II, § 4; id. art. I, § 2, cl. 5; id. art. I, § 3, cl. 6. Congress has at times exercised the impeachment
power to address perceived violations of the law and abuses of power by federal judges, though it has never impeached
and removed a Supreme Court Justice. The Constitution strictly limits involuntary removal of federal judges by any
means other than impeachment. Id. art. III, § 1 (providing that federal judges “shall hold their Offices during good
Behaviour”); see also infra “Constitutionality of Legislation Modifying Life Tenure.”
7 See Cong. Research Serv., Exceptions Clause and Congressional Control Over Appellate Jurisdiction, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C2-6/ALDE_00013618/ (last visited Jan. 5,
2023).
8 Proposed changes to judicial nominations, confirmation, or impeachments are generally outside the scope of this
report. This report also does not discuss proposed changes to the inferior federal courts except to the extent lower court
reforms are intended to affect the Supreme Court.
9 See infra “Changes to the Size of the Supreme Court.”
10 See infra “Changes to Supreme Court Justices’ Tenure.”
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authority to set or change the size of the Supreme Court through ordinary legislation, but
implementation of term or age limits would likely require a constitutional amendment.
Some proposals would change the size of the Court or modify Justices’ tenure while also making
other structural changes, such as having Justices rotate between the Supreme Court and the lower
federal courts, dividing the Supreme Court into panels, or seeking to ensure ideological balance
on the Court.11 Legislators and commentators have also advanced other proposals to change the
Supreme Court’s jurisdiction or procedures. Prominent proposals in this area include making
changes to the Court’s motions docket;12 limiting the Court’s appellate jurisdiction over certain
categories of cases;13 imposing voting rules on the Court, such as requiring the agreement of a
supermajority of Justices before the Court can declare a law unconstitutional, or allowing
Congress to override Supreme Court decisions;14 imposing or enforcing new judicial ethics rules
for Justices;15 or expanding transparency through means such as allowing video recordings of
Supreme Court proceedings.16 Those proposals might raise various constitutional questions on a
case-by-case basis. Moreover, even if not expressly limited by the Constitution, some Court
reform proposals may raise questions about separation of powers and the role of the judiciary
within the American system of government.
Legal and Historical Background
Among the federal courts, the Constitution grants the Supreme Court special status. Article III
provides that federal judicial power “shall be vested in one supreme Court” while leaving
Congress discretion over whether to create inferior federal courts.17 That provision appears to
require that there must be a Supreme Court.18 Article III further provides that the Supreme Court
“shall have original Jurisdiction” over certain categories of cases.19 The Supreme Court has
generally interpreted that provision to grant the Court the power to hear all matters that fall within
its original jurisdiction in a manner that Congress cannot limit.20
As a historical matter, Congress has also traditionally recognized that the Supreme Court enjoys a
unique status within the constitutional system. At times, Congress has enacted legislation that
applies only to the inferior federal courts, leaving the high court greater leeway to manage its own
11 See infra “Other Structural Changes to the Supreme Court.”
12 See infra “Motions Practice: the “Shadow Docket”.’”
13 See infra “Limits on Jurisdiction.”
14 See infra “Voting Rules and Congressional Override.”
15 See infra “Judicial Ethics.”
16 See infra “Cameras in the Courtroom and Other Transparency Measures.”
17 U.S. CONST. art. III, § 1; see also Cong. Research Serv., Historical Background on Establishment of Article III
Courts, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-8-2/ALDE_00013558/
(last visited Jan. 5, 2023).
18 While Congress has never tested the limits of this text, it arguably prohibits Congress from abolishing the Supreme
Court; dividing into more than one tribunal; or restructuring the federal judiciary so that the Court is not meaningfully
“supreme,” such as by depriving it of authority to review decisions of other tribunals. See infra “Rotation Between
Courts and Supreme Court Panels”; see also Cong. Research Serv., Supreme Court and Congress, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-8-3/ALDE_00013559/ (last visited Jan. 5, 2023).
19 U.S. CONST. art. III, § 2, cl. 2.
20 See, e.g., Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861). See generally Cong. Research Serv., Supreme
Court Original Jurisdiction, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C22/ALDE_00001220/ (last visited Jan. 5, 2023).
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affairs.21 Thus, there are some areas where the scope of Congress’s regulatory authority over the
Court is not clearly defined, because Congress has declined to test the limits of its power.22 There
are also areas where the Constitution’s text does not clearly prevent Congress from legislating but
where some observers and stakeholders nonetheless argue that constitutional norms such as
separation of powers and inter-branch comity counsel against Congress regulating the Supreme
Court.23 Nonetheless, Supreme Court decisions and long-standing practice also establish that
Congress has the power to regulate many aspects of the Supreme Court’s structure and
procedures.
Discussion of Supreme Court regulation and reform has attracted significant public attention at
various points in American history. For instance, in the early 1800s, Congress enacted farreaching alterations to the federal judiciary—including a change to the Court’s size—only to
repeal the changes when control of Congress shifted.24 Following the Civil War, Congress passed
legislation limiting the Court’s jurisdiction in an effort to prevent judicial review of certain
Reconstruction policies.25 During the Great Depression, President Franklin Delano Roosevelt’s
Administration proposed Court expansion legislation, sometimes called the “court packing plan,”
which many viewed as an attempt to shift the ideological leaning of the Court and prevent it from
striking down New Deal legislation.26 In the 1960s, in response to decisions such as Brown v.
Board of Education,27 some legislators advanced proposals that would limit the power of the
Court to hold state actions unconstitutional.28
Supreme Court reform has garnered renewed public attention in the past decade. Key areas of
discussion include the Court’s procedures for handling emergency litigation;29 concerns about
21 For example, Congress exercises significant oversight over the procedural rules for the lower federal courts but has
deferred to the Supreme Court to make its own procedural rules. See CRS In Focus IF11557, Congress, the Judiciary,
and Civil and Criminal Procedure, by Joanna R. Lampe (2020).
22 For instance, Congress has never enacted legislation to impose voting rules on the Court, see infra “Voting Rules and
Congressional Override,” or to restructure the Court beyond changing its size, see infra “Other Structural Changes to
the Supreme Court.”
23 For example, some oppose changing the size of the Supreme Court in order to change the Court’s ideological
balance, see infra “Constitutionality of Changes to the Size of the Supreme Court,” or legislating to impose new ethical
requirements on the Justices, see infra “Judicial Ethics.”
24 See Judiciary Act of 1801, ch. 4, 2 Stat. 89; Act of Mar. 8, 1802, ch. 9, 2 Stat. 132.
25 See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869) (applying legislation limiting jurisdiction over a petition for a
writ of habeas corpus from a civilian convicted of acts obstructing Reconstruction).
26 See, e.g., Fed. Jud. Ctr., FDR’s “Court-Packing” Plan, https://www.fjc.gov/history/timeline/fdrs-court-packing-plan
(last visited Jan. 5, 2023); see also infra “History and Practice on the Size of the Court.”
27 347 U.S. 483 (1954).
28 See PRESIDENTIAL COMM’N ON THE SUPREME CT. OF THE UNITED STATES, FINAL REPORT 57 (2021),
https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.pdf [hereinafter, SCOTUS
Commission Report].
29 See, e.g., William Baude, The Supreme Court’s Secret Decisions, N.Y. TIMES (Feb. 3, 2015),
https://www.nytimes.com/2015/02/03/opinion/the-supreme-courts-secret-decisions.html; The Supreme Court’s Shadow
Docket: Hearing Before the Subcomm. on Courts, Intellectual Prop., & the Internet of the H. Comm. on the Judiciary,
117th Cong. 1 (2021).
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politicization, both in the selection and confirmation of judicial nominees and in the Court’s
rulings;30 and some observers’ substantive disagreement with certain of the Court’s decisions.31
On April 9, 2021, President Joe Biden issued Executive Order 14023 forming the Presidential
Commission on the Supreme Court of the United States.32 Members of the commission were to
include “distinguished constitutional scholars, retired members of the Federal judiciary, or other
individuals having experience with and knowledge of the Federal judiciary and the Supreme
Court of the United States.”33 The group’s task was to produce a report for the President
describing contemporary debate “about the role and operation of the Supreme Court in our
constitutional system” and the functioning of the Supreme Court nomination and confirmation
process; historical background on prior “critical assessment” and proposals for reform related to
the Court; and “analysis of the principal arguments in the contemporary public debate for and
against Supreme Court reform, including an appraisal of the merits and legality of particular
reform proposals.”34
In December 2021, the commission issued a report outlining the history of Supreme Court
regulation and discussing numerous Supreme Court reform proposals.35 The preface explained
that “the Report identifies prominent proposals for reform and provides a critical evaluation of the
strengths and weaknesses of the proposals,” including “consideration of whether specific
proposals could reasonably be expected to achieve the objectives that their proponents desire,”
“other potential consequences that might result from the reforms,” and analysis of “the
constitutional and other legal requirements that would have to be met or resolved to implement
the reforms.”36 It further stated that the report reflected “bipartisan, diverse perspectives from
Commissioners” who “hold various and sometimes opposing views on the legal and policy issues
raised in the Court reform debate.”37 Noting that the executive order did not call for the
commission to issue recommendations, it nonetheless stated that “the Report does provide a
critical appraisal of arguments in the reform debate” and that the commissioners had approved the
report unanimously “in the belief that it represents a fair and constructive treatment of the
complex and often highly controversial issues it was charged with examining.”38
Many of the issues and proposals for reform discussed in this CRS Report are also examined in
the commission report. This report focuses on legal issues related to Supreme Court regulation
30 See, e.g., John Fritze & Chelsey Cox, Poll: Most Americans see politics over substance in Supreme Court
confirmation process, USA TODAY (Apr. 15, 2022), https://www.usatoday.com/story/news/politics/2022/04/15/ketanjibrown-jackson-poll-finds-skepticism-over-confirmation-process/7310985001/ (politicization of the confirmation
process); Ronald A. Cass, Nationwide Injunctions’ Governance Problems: Forum Shopping, Politicizing Courts, and
Eroding Constitutional Structure, 27 GEO. MASON L. REV. 29, 53–55 (2019) (nationwide injunctions and
politicization); Walter Shapiro, The Case Against Court-Packing, BRENNAN CTR. FOR JUSTICE (June 24, 2019),
https://www.brennancenter.org/our-work/analysis-opinion/case-against-court-packing (court expansion and
politicization).
31 See, e.g., James Arkin, Democrats Renew Call To Expand Supreme Court Post-Dobbs, LAW360 (July 18, 2022),
https://www.law360.com/articles/1512716/democrats-renew-call-to-expand-supreme-court-post-dobbs; Ian Millhiser,
10 Ways to Fix a Broken Supreme Court, VOX (July 2, 2022), https://www.vox.com/23186373/supreme-court-packingroe-wade-voting-rights-jurisdiction-stripping.
32 Exec. Order No. 14,023, 86 Fed. Reg. 19,569 (Apr. 9, 2021).
33 Id.
34 Id.
35 SCOTUS Commission Report, supra note 28. The commission did not consider changes to the nomination and
confirmation process except in an appendix.
36 Id. at 1.
37 Id.
38 Id.
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that are most relevant to Congress. Readers seeking additional historical background or policy
analysis of Supreme Court reform proposals may also wish to consult the commission report.
Changes to the Size of the Supreme Court
In living memory, the Supreme Court has always had nine members.39 However, the Constitution
does not mandate a nine-Justice Court. Rather, the size of the Court changed multiple times in the
early history of the Republic, and some recent proposals advocate further changes.
Article III, Section 1, of the Constitution provides: “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.”40 Although the Constitution provides that there shall be “one supreme
Court,” it does not specify that court’s size or composition.
In the absence of controlling constitutional text, Congress determines the size of the Court
through legislation. While Article I gives Congress the power to “constitute Tribunals inferior to
the supreme Court,” the Constitution does not expressly grant Congress the authority to set or
modify the size of the Supreme Court.41 Instead, Congress is understood to possess that power by
virtue of the Necessary and Proper Clause, which allows Congress to legislate as needed to
support the exercise of its enumerated powers and “all other Powers vested by th[e] Constitution
in the Government of the United States,” including those of the judicial branch.42
Proposals to expand the Supreme Court are often premised on the belief that, if more seats were
added to the Court, it would give the President who nominates the new Justices significant power
to shape the Court in a way that aligns with the policy preferences of the President and the
political party that controls the Senate. Thus, both historically and recently, proposed legislation
related to the size of the Supreme Court has prompted debate about the role of the judiciary and
the means by which political actors may influence the Supreme Court’s approach to interpreting
the law.
History and Practice on the Size of the Court
As a legal matter, Congress possesses substantial authority to change the size of the Supreme
Court, though legislation that would eliminate an occupied seat on the Court might violate the
constitutional requirement that Justices hold their offices “during good Behaviour.”43 Historical
practice generally reflects that understanding.
For over 150 years, the size of the Supreme Court has been set by statute at nine Justices—one
Chief Justice and eight Associate Justices.44 However, the Constitution does not specify the size
of the Supreme Court, and the Court has not always had nine members. Rather, Congress changed
the Court’s size multiple times during the 19th century.
39 See 28 U.S.C. § 1.
40 U.S. CONST. art. III, § 1.
41 Id. art. I, § 8, cl. 9.
42 Id. art. I, § 8, cl. 18. Using these powers, Congress has enacted legislation to constitute the Supreme Court and
establish federal district courts, courts of appeals, and numerous courts of special jurisdiction. For additional discussion
of Congress’s authority to structure the federal courts, see Cong. Research Serv., Overview of Establishment of Article
III Courts, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-8-1/ALDE_00013557/
(last visited Jan. 5, 2023).
43 U.S. CONST. art. III, § 1; see also infra “Constitutionality of Legislation Modifying Life Tenure.”
44 See 28 U.S.C. § 1.
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Congress first exercised its authority to structure the federal courts in the Judiciary Act of 1789.45
In addition to establishing federal district and circuit courts, the 1789 act created a six-member
Supreme Court with one Chief Justice and five Associate Justices.46 In 1801, Congress reduced
the size of the Court to five Justices.47 However, the 1801 statute did not eliminate an occupied
seat on the Court; instead, it provided that the change would take effect “after the next vacancy.”48
Congress repealed the 1801 law before any vacancy occurred, leaving the size of the Court at six
Justices.49
Over the following decades, Congress enacted multiple statutes changing the size of the Court.50
At its largest, during the Civil War, the Court had 10 Justices.51 While some scholars assert that
the expansion to 10 Justices was driven by docket needs, others contend that Congress enlarged
the Court to allow President Abraham Lincoln to “appoint Justices who favored the Republicans’
agenda of combatting slavery and preserving the union.”52 In 1866, Congress reduced the size of
the Court to seven Justices.53 Like the 1801 legislation, the 1866 law provided that the Court
would decrease in size as vacancies arose rather than eliminating any occupied seats on the
bench. Some commentators argue the reduction stemmed at least in part from concerns that a 10Justice Court was too large or from the sitting Chief Justice’s desire to increase the Justices’
salaries, but others assert that political conflict between Congress and President Andrew Johnson
motivated the change.54 In 1869, under a new presidential Administration, Congress expanded the
Court to include nine Justices,55 and the size of the Court has since remained unchanged. The
2021 Report of the Presidential Commission on the Supreme Court of the United States
concluded that each of the 19th-century changes to the size of the Court “seems to have been
motivated by a mix of institutional and political concerns.”56
The Reconstruction Era was not the last time that Congress considered legislation that would
expand the Supreme Court. In the 1930s, President Franklin Delano Roosevelt backed sweeping
measures designed to promote recovery from the Great Depression only to see the Supreme Court
strike down multiple pieces of New Deal legislation.57 In response, the Roosevelt Administration
developed a plan to appoint additional Supreme Court Justices, seeking to swing the Court in his
favor. The resulting proposal, the Judicial Procedures Reform Bill of 1937, would have
authorized the President to nominate one new judge for each federal judge with 10 years of
45 Judiciary Act of 1789, ch. 20, § 1, 1 Stat. 73, 73.
46 Id.
47 Judiciary Act of 1801, ch. 4, § 3, 2 Stat. 89, 89.
48 Id.
49 Act of Mar. 8, 1802, ch. 9, § 1, 2 Stat. 132, 133.
50 See, e.g., Act of Feb. 24, 1807, ch. 16, § 5, 2 Stat. 420, 421; Act of Mar. 3, 1837, ch. 34, § 1, 5 Stat. 176, 176.
51 See Act of Mar. 3, 1863, ch. 100, § 1, 12 Stat. 794, 794.
52 Compare JUSTIN CROWE, BUILDING THE JUDICIARY: LAW, COURTS, AND THE POLITICS OF INSTITUTIONAL
DEVELOPMENT 153–59 (2012), with Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 VAND.
L. REV. 465, 507 (2018).
53 See Judiciary Act of 1866, ch. 210, 14 Stat. 209, 209.
54 Compare Erick Trickey, The History of ‘Stolen’ Supreme Court Seats, SMITHSONIAN MAG. (Sept. 25, 2020),
https://www.smithsonianmag.com/history/history-stolen-supreme-court-seats-180962589/, and Timothy Huebner, The
First Court-packing Plan, SCOTUSBLOG (July 3, 2013), https://www.scotusblog.com/2013/07/the-first-court-packingplan/, with The 19th-Century History of Court Packing, NAT’L CONSTITUTION CTR. (Sept. 24, 2020),
https://constitutioncenter.org/news-debate/podcasts//the-19th-century-history-of-court-packing.
55 See Circuit Judges Act of 1869, ch. 22, 16 Stat. 44, 44.
56 SCOTUS Commission Report, supra note 28, at 68.
57 See, e.g., Carter v. Carter Coal Co., 298 U.S. 238, 317 (1936); A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495, 542–51 (1935).
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service who did not retire within six months of reaching the age of 70, including up to six new
Supreme Court Justices.58 President Roosevelt argued for the proposal partly on practical
grounds, asserting that more Justices were needed to manage the Court’s caseload, but he also
contended that changes to the Court were needed because the Supreme Court was “acting not as a
judicial body, but as a policy-making body” in invalidating New Deal programs.59
Many viewed the court packing plan as an effort to make the Court more favorable to President
Roosevelt’s New Deal policies, and the proposal provoked significant public opposition. The
Senate Judiciary Committee issued a report emphatically condemning the measure.60 Members of
the Supreme Court also publicly opposed the proposal on both practical and separation-of-powers
grounds.61 The bill did not advance in Congress.
While the court expansion proposal was pending before Congress, Justice Owen Roberts, who
had previously voted with a majority of the Supreme Court to strike down New Deal legislation,
voted to uphold a minimum wage law in West Coast Hotel Co. v. Parrish.62 He later also voted to
uphold other New Deal policies.63 The precise reasons for Justice Roberts’s vote in Parrish
remain disputed, but his action became known as the “switch in time that saved nine,” and
President Roosevelt eventually abandoned his plan to enlarge the Supreme Court.64 Academic
discussion continues around the broader historical and legal implications of the New Deal court
expansion proposal, but many view the episode as a political failure that undermined President
Roosevelt’s New Deal agenda and deterred subsequent attempts to enlarge the Supreme Court.65
While Congress has not changed the size of the Supreme Court by statute since the 1860s, it has
also declined to pursue a constitutional amendment that would formally entrench a nine-Justice
Court. In the 1950s, some Members of Congress proposed a constitutional amendment that would
have set the size of the Court at nine members. Two-thirds of the Senate approved the measure,
but the House Judiciary Committee declined to advance the proposal.66
Constitutionality of Changes to the Size of the Supreme Court
Legal scholars almost universally agree that Congress has the constitutional authority to enact
legislation changing the size of the Supreme Court for practical reasons, such as managing
58 S. 1392, 75th Cong. (1937). Among other things, the proposal would also have allowed the President to appoint
additional judges to the lower federal courts.
59 Franklin D. Roosevelt, Fireside Chat (Mar. 9, 1937), AM. PRESIDENCY PROJECT,
https://www.presidency.ucsb.edu/documents/fireside-chat-17.
60 S. REP. NO. 75-711 (1937).
61 Letter from Charles Evans Hughes, Chief Justice, to Burton K. Wheeler, U.S. Sen. (Mar. 21, 1937).
62 300 U.S. 379, 390–400 (1937).
63 See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 49 (1937); Charles C. Steward Mach. Co. v. Davis, 301 U.S.
548, 578–98 (1937).
64 See, e.g., David E. Ho & Kevin M. Quinn, Did a Switch in Time Save Nine?, 2 J. LEGAL ANALYSIS 69 (2010).
65 See, e.g., Shapiro, supra note 30; Adam Liptak, The Precedent, and Perils, of Court Packing, N.Y. TIMES (Oct. 12,
2020), https://www.nytimes.com/2020/10/12/us/supreme-court-packing.html; see also, e.g., Daniel Epps & Ganesh
Sitaraman, Essay, Supreme Court Reform and American Democracy, YALE L.J.F. 821, 822 (2021) (describing Court
expansion as a “third rail in American politics”).
66 See 99 CONG. REC. 1106 (1953); C.P. Trussell, Court Amendment Tabled in House, N.Y. TIMES, Aug. 4, 1954, at 11,
https://www.nytimes.com/1954/08/04/archives/court-amendment-tabled-in-house-judiciary-group-118-kills-bidto.html. The measure would also have required Justices to retire at age 75.
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caseload.67 While Congress has not recently changed the size of the Supreme Court, it has
repeatedly expanded the lower federal courts to accommodate increasing caseloads.68
One key limit on legislative changes to the Court’s size is that legislation that would remove a
sitting Justice from the Court other than through impeachment is likely to be unconstitutional.
Article III provides that all federal judges “shall hold their Offices during good Behaviour,” a
provision that the Supreme Court has interpreted to mean that federal judges enjoy life tenure
unless impeached.69 Based on that provision, most commentators agree that Congress cannot
legislate to reduce the size of the Supreme Court in a way that would remove a sitting Justice.70
As a result, historical legislation reducing the size of the Court has always provided that any
reduction would occur as Justices left the bench.71
Aside from the foregoing limitation, the Constitution entrusts control over the size and structure
of the federal courts to Congress. Nothing in the Constitution’s text expressly restricts Congress’s
ability to expand the Supreme Court, whether for practical reasons or as an attempt to influence
the Court’s ideology. Outside the context of court expansion, political and policy considerations
often affect the selection of Supreme Court Justices. For instance, Presidents and presidential
candidates may publicly indicate their intent to nominate Justices with viewpoints that they
believe will further their policy preferences.72 Senators evaluating a judicial nominee may
consider how they believe the nominee might vote on certain issues if confirmed, and
confirmation hearings have given the Senate Judiciary Committee the ability to ask nominees
about their judicial philosophies.73 Supreme Court Justices may also choose to retire at a time that
allows a particular President to select their successors.74 In light of those practices, and absent
67 See, e.g., Presidential Commission on the Supreme Court of the United States 19 (Aug. 9, 2021) (written testimony
of Michael J. Gerhardt, Prof., Univ. of N.C. at Chapel Hill), https://www.whitehouse.gov/wpcontent/uploads/2021/08/Professor-Michael-J.-Gerhardt.pdf (“There is little doubt about the constitutionality of the
Congress’s authority to expand or contract the size of the Court.”); Presidential Commission on the Supreme Court of
the United States 3 (Aug. 9, 2021) (written testimony of G. Edward White, Prof., Univ. of Va. Sch. of Law),
https://www.whitehouse.gov/wp-content/uploads/2021/08/Professor-G.-Edward-White.pdf (“There is no question that
Congress can constitutionally change the size of the Court.... ”). But see Presidential Commission on the Supreme
Court of the United States 2, 4 (July 20, 2021) (written testimony of Randy E. Barnett, Prof., Georgetown Univ. Law
Ctr.), https://www.whitehouse.gov/wp-content/uploads/2021/07/Barnett-Testimony.pdf; Peter Nicolas, “Nine, of
Course”: A Dialogue on Congressional Power to Set by Statute the Number of Justices on the Supreme Court, 2
N.Y.U. J. L. & LIBERTY 86 (2006).
68 See Admin. Off. of the U.S. Cts., U.S. Courts of Appeals Additional Authorized Judgeships, U.S. CTS.,
https://www.uscourts.gov/sites/default/files/appealsauth.pdf (last visited Jan. 5, 2022).
69 U.S. CONST. art. III, § 1; United States v. Hatter, 532 U.S. 557, 567 (2001) (explaining that the Good Behavior
Clause grants federal judges “the practical equivalent of life tenure”). Article III also states that judges may not have
their compensation reduced while in office. U.S. CONST. art. III, § 1. See generally Cong. Research Serv., Overview of
Federal Judiciary Protections, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S110-1/ALDE_00013554/ (last visited Jan. 5, 2023).
70 For further discussion of Justices’ life tenure, see infra “Constitutionality of Legislation Modifying Life Tenure.”
71 See Judiciary Act of 1801, ch. 4, § 3, 2 Stat. 89, 89; Judiciary Act of 1866, ch. 211, 14 Stat. 209, 209. But see Act of
Mar. 8, 1802, ch. 9, § 1, 2 Stat. 132, 132 (repealing legislation authorizing certain federal circuit court judgeships
without making any provision for the judges who held the abolished seats).
72 See, e.g., Dr. Adam Feldman, The Next Justice – In The Candidates’ Own Words, EMPIRICAL SCOTUS (June 5,
2016), https://empiricalscotus.com/2016/06/05/the-next-justice/; Mark Berman, Trump promised judges who would
overturn Roe v. Wade, WASH. POST (Mar. 21, 2017), https://www.washingtonpost.com/politics/2017/liveupdates/trump-white-house/neil-gorsuch-confirmation-hearings-updates-and-analysis-on-the-supreme-courtnominee/trump-promised-judges-who-would-overturn-roe-v-wade/.
73 See CRS Report R45300, Questioning Judicial Nominees: Legal Limitations and Practice, by Valerie C. Brannon
and Joanna R. Lampe (2022).
74 See, e.g., Christine Kexel Chabot, Do Justices Time Their Retirements Politically? An Empirical Analysis of the
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constitutional language to the contrary, many scholars contend that Congress possesses the
constitutional authority to enlarge the Supreme Court even if the expansion is intended to shape
the Court’s political composition.75
On the other hand, legislative efforts to alter the political composition of the federal judiciary may
raise concerns related to the constitutional principle of separation of powers. The Constitution’s
Framers aimed to ensure that the judiciary would be independent from the political branches of
government.76 Reflecting that concern, Alexander Hamilton advocated in the Federalist Papers
for courts that would interpret the law impartially and explained that the “independence of the
judges is ... requisite to guard the Constitution and the rights of individuals” from encroachment
by the legislature.77 The considerations that Hamilton discussed are embodied in Article III,
which established the federal judiciary as a fully discrete branch of government (in contrast to the
British system at the time, where a branch of the legislature also functioned as the tribunal of last
resort).78 Article III’s life tenure requirement and salary protections were also designed to insulate
judges from political pressure.79
If Congress were to change the size or composition of the federal courts in an attempt to obtain
desired outcomes in future cases, some might raise separation-of-powers objections that the
legislative branch was improperly attempting to control a coequal branch of government.80
Congress itself has voiced such objections in the past: In its report rejecting the Judicial
Procedures Reform Bill of 1937, the Senate Judiciary Committee declared that the bill “applies
force to the judiciary and . . . would undermine the independence of the courts” and that the
“theory of the bill is in direct violation of the spirit of the American Constitution.”81 Some
commentators have likewise opposed recent Court expansion proposals on separation-of-powers
grounds.82
Timing and Outcomes of Supreme Court Retirements in the Modern Era, 2019 UTAH L. REV. 527 (2019); Adam
Feldman, Empirical SCOTUS: Retirement Plan Blues, SCOTUSBLOG (May 23, 2018),
https://www.scotusblog.com/2018/05/empirical-scotus-retirement-plan-blues/.
75 E.g., Daniel Epps, Non-Originalism and Constitutional Arguments About Changing the Supreme Court’s Size, DORF
ON LAW (Nov. 2, 2020), http://www.dorfonlaw.org/2020/11/non-originalism-and-constitutional.html; Richard Primus,
Rulebooks, Playgrounds, and Endgames: A Constitutional Analysis of the Calabresi-Hirji Judgeship Proposal, HARV.
L. REV. BLOG (Nov. 24, 2017), https://blog.harvardlawreview.org/rulebooks-playgrounds-and-endgames-aconstitutional-analysis-of-the-calabresi-hirji-judgeship-proposal/.
76 See, e.g., 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 44 (Max Farrand ed., 1911) (discussion of how
salary protection for judges could support judicial independence); id. at 429 (statement of Mr. Wilson, in discussion of
the Good Behavior Clause, that “Judges would be in a bad situation if made to depend on every gust of faction which
might prevail in the two branches of our Govt.”).
77 THE FEDERALIST NO. 78 (Alexander Hamilton).
78 See THE FEDERALIST NO. 81 (Alexander Hamilton).
79 See infra “Constitutionality of Legislation Modifying Life Tenure”; see also Cong. Research Serv., Overview of
Federal Judiciary Protections, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S110-1/ALDE_00013554/ (last visited Jan. 5, 2023).
80 See, e.g., Presidential Commission on the Supreme Court of the United States 2, 4 (July 20, 2021) (written testimony
of Randy E. Barnett, Prof., Georgetown Univ. Law Ctr.), https://www.whitehouse.gov/wpcontent/uploads/2021/07/Barnett-Testimony.pdf (arguing that “partisan court packing” is “unconstitutional because it
violates both the letter and spirit of the Constitution”).
81 S. REP. NO. 75-711, at 3 (1937).
82 See, e.g., Casey Mattox, Packing the Court Risks Destroying Its Legitimacy, NEWSWEEK (Oct. 26, 2020),
https://www.newsweek.com/packing-court-risks-destroying-its-legitimacy-opinion-1541755; Henry Olsen, Packing the
Supreme Court is a Horrible Idea. Democrats Must Reject it, WASH. POST (Sept. 21, 2020),
https://www.washingtonpost.com/opinions/2020/09/21/packing-supreme-court-is-horrible-idea-democrats-must-rejectit/.
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Other commentators base their arguments not on the explicit rules and structure of the
Constitution but on precedents and norms. These non-textual rules, norms, and institutions that
guide American government are sometimes referred to as the “small-c” constitution.83 One
argument in this vein asserts that, by remaining stable for a century and a half, a nine-Justice
Supreme Court has now become a settled constitutional norm that would be undermined by
efforts to expand the Court for political reasons.84 Some scholars cite the rejection of the 1937
court expansion proposal as further support for such a norm.85 On the other hand, some scholars
contend that lack of precedent in recent years, standing alone, does not signal that a proposal is
unconstitutional.86 And some dispute whether politically motivated court expansion proposals
would be novel, pointing to the historical changes to the Court’s size discussed above, among
other congressional actions, as prior examples of political influence over the Court.87
Assuming politically motivated expansion of the Supreme Court would raise constitutional
questions, the Court itself might consider those issues, though there is some question whether the
federal courts would exercise jurisdiction over a challenge to a court expansion statute or would
deem such a challenge to present a non-justiciable political question.88 In addition, Members of
Congress and the President may independently consider constitutional arguments for and against
proposed court expansion legislation when deciding whether to support Court reform proposals.89
Considerations for Congress
Discussion of Supreme Court expansion experienced a resurgence following the death of Justice
Ruth Bader Ginsburg and the nomination and confirmation of Justice Amy Coney Barrett in the
weeks leading up to the 2020 presidential election.90 A number of bills introduced during the
116th and 117th Congresses and recent proposals from legal commentators would change the size
or structure of the Supreme Court. The proposals vary in scope. Some commentators have
suggested increasing the size of the Supreme Court, for example by adding two or four seats.91
Other proposals would alter the size of the Court while also changing the Court’s structure or
composition. For example, a proposal known as the “Balanced Bench” would expand the Court to
83 E.g., M. Todd Henderson, Court-Packing Is Unconstitutional, NEWSWEEK (Oct. 30, 2020),
https://www.newsweek.com/court-packing-unconstitutional-opinion-1543290; Primus, supra note 75; cf. Richard A.
Primus, Unbundling Constitutionality, 80 U. CHI. L. REV. 1079 (2013).
84 E.g., Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Constitutional Conventions, and the Judicial Separation
of Powers, 105 GEO. L.J. 255, 269–87 (2017); Fred Bauer, Biden, Court-Packing, and Constitutional Norms, NAT’L
REV. (Oct. 1, 2020), https://www.nationalreview.com/corner/joe-biden-court-packing-and-constitutional-norms/.
85 E.g., Will Baude, Why Isn't Court-Packing Unconstitutional?, VOLOKH CONSPIRACY (Oct. 31, 2020),
https://reason.com/volokh/2020/10/31/why-isnt-court-packing-unconstitutional/.
86 See Leah M. Litman, Debunking Antinovelty, 66 DUKE L.J. 1407 (2017).
87 E.g., Epps, supra note 75.
88 See Baude, supra note 85; Julian Velasco, Congressional Control Over Federal Court Jurisdiction: A Defense of the
Traditional View, 46 CATH. U. L. REV. 671, 760 (1997).
89 The President and Members of Congress each swear an oath to support or defend the Constitution. See U.S. CONST.
art. II, § 1, cl. 8; id. art. VI.
90 See, e.g., Maggie Astor, Ginsburg’s Death Revives Calls for Court Packing, N.Y. TIMES (Sept. 19, 2020),
https://www.nytimes.com/2020/09/19/us/politics/ginsburgs-death-revives-calls-for-court-packing.html; Eric Levitz, If
the McConnell Rule Is Dead, Court-Packing Is Permitted, N.Y. MAG. (Sept. 22, 2020),
https://nymag.com/intelligencer/2020/09/mcconnell-hypocrisy-rbg-trump-democrats-court-packing.html.
91 E.g., Quinta Jurecic & Susan Hennessey, The Reckless Race to Confirm Amy Coney Barrett Justifies Court Packing,
ATL. (Oct. 4, 2020), https://www.theatlantic.com/ideas/archive/2020/10/skeptic-case-court-packing/616607/; Sarah
Roberts, Packing the Supreme Court: Will the Passing of RBG Lead to an End of the Nine?, LAW COMMENTARY (Sept.
25, 2020), https://www.lawcommentary.com/articles/packing-the-supreme-court-will-the-passing-of-rbg-lead-to-anend-of-the-nine.
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include 15 Justices: five permanent Justices affiliated with Republicans, five permanent Justices
affiliated with Democrats, and five temporary Justices drawn from the lower federal courts and
chosen unanimously by the 10 permanent Justices.92 Another proposal would reduce the size of
the Court to eight Justices, evenly divided between Democratic- and Republican-selected jurists.93
To the extent a proposal would enlarge the Supreme Court while otherwise maintaining the
Court’s current structure, most scholars agree that Congress may pursue that change through
legislation, as it has in the past. By contrast, any proposal that would immediately decrease the
size of the Court or otherwise remove a sitting Justice from the bench would likely violate the
constitutional requirement that federal judges enjoy life tenure during good behavior. Congress
could avoid that issue, as it has in prior legislation, by making any reduction effective only once a
vacancy occurs due to the death or retirement of a sitting Justice.94
Specific proposals may also raise other constitutional questions. For instance, if it were
understood to create temporary judgeships, the “Balanced Bench” proposal might violate Article
III’s life tenure requirement.95 Any legislation that would restrict the President’s discretion to
select judicial nominees might also run afoul of the Appointments Clause.96 Moreover, partisan
balance proposals might raise questions under the First Amendment by limiting eligibility for
judgeships based on Justices’ political party affiliation.97 If a Court reform proposal conflicted
with existing constitutional limitations, the reform would require a constitutional amendment.
Proposals to modify the size and composition of the Court with the aim of obtaining favorable
judicial outcomes also raise complex questions about the role of the judiciary within the
American system of government. Supreme Court expansion is not the only practice that can raise
such issues. Although proposals to enlarge the Supreme Court have attracted popular attention
recently, supporters of both major political parties have previously proposed or adopted different
means to increase the number of federal judges appointed by a President of their own party or
decrease the number of judges appointed by a President of the opposing party. Examples include
encouraging strategic retirements by sitting Supreme Court Justices;98 delaying, expediting, or
taking no action on judicial confirmation hearings;99 and seeking to expand or shrink the lower
federal courts to increase or decrease the number of judges the President could nominate.100 All of
those strategies may raise certain overlapping issues.
92 Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L.J. 148, 193–205 (2019).
93 Eric J. Segall, Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, 45 PEPP. L.
REV. 547 (2018).
94 See Judiciary Act of 1801, ch. 4, § 3, 2 Stat. 89, 89; Judiciary Act of 1866, ch. 211, 14 Stat. 209, 209.
95 For discussion of Justices’ life tenure, see infra “Constitutionality of Legislation Modifying Life Tenure.”
96 U.S. CONST. art. II, § 2, cl. 2; see also Cong. Research Serv., Appointments of Justices to the Supreme Court,
CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artII-S2-C2-3-5/ALDE_00013096/ (last
visited Jan. 5, 2023).
97 U.S. CONST. amend. I. A political independent has challenged a state court partisan balance requirement on First
Amendment grounds, but the Supreme Court did not reach the First Amendment question because it held the challenger
lacked standing to sue. Carney v. Adams, 141 S. Ct. 493 (2020).
98 E.g., Scott Lemieux, When Do Supreme Court Justices Retire? When the Politics Are Right., WASH. POST (Aug. 28,
2019), https://www.washingtonpost.com/outlook/2019/08/28/when-do-supreme-court-justices-retire-when-politics-areright/.
99 E.g., Carl Hulse, How Mitch McConnell Delivered Justice Amy Coney Barrett’s Rapid Confirmation, N.Y. TIMES
(Oct. 27, 2020), https://www.nytimes.com/2020/10/27/us/mcconnell-barrett-confirmation.html; CRS Report R44773,
The Scalia Vacancy in Historical Context: Frequently Asked Questions, by Barry J. McMillion (2017).
100 Steven G. Calabresi, Republicans Should Expand the Federal Courts, NAT’L REV. (Nov. 15, 2017),
https://www.nationalreview.com/2017/11/gop-tax-bill-should-expand-federal-courts/; Carrie Johnson, Senators Tussle
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First, many of the foregoing practices or proposals are premised on the view that a judge
appointed by a certain President is likely to rule in ways that advance the policy agenda of that
President or the President’s political party. However, selecting judges based on their perceived
ideology may not necessarily be an effective way to control the outcome of future cases. As
recent CRS Reports discuss in more detail, it is difficult to predict how judicial nominees will
rule in future cases based solely on their past writings and statements.101 There are many areas of
law where Supreme Court alignments may not divide neatly along political lines.102 Moreover,
even assuming it is possible to determine a judge’s personal partisan affiliation, the judge may
follow a judicial philosophy—encompassing the judge’s approach to constitutional and statutory
interpretation—that yields results that differ from his or her perceived political affiliation.103
Second, proponents of Supreme Court expansion may assert that Congress should enlarge the
Court in order to preserve certain legal doctrines or to correct a perceived political imbalance on
the Court.104 On the other hand, some who oppose court expansion worry that if one political
party enlarges the Supreme Court, the other party could later retaliate by adding additional
Justices.105 They contend that a Court expansion tit-for-tat could thwart attempts to shift the
Court’s political balance and, if carried to the extreme, yield an absurdly large Court.106
Third, efforts to control the political composition of the federal judiciary may conflict with the
traditional understanding of courts as independent, non-political entities. Besides the possible
constitutional issues discussed above, many commentators worry that proposals that seek to
control which party nominates federal judges may increase the perceived politicization of the
judiciary and decrease its perceived legitimacy.107 They contend that if the public comes to view
courts, and especially the Supreme Court, as political bodies, people may lose confidence in the
Over Proposal To ‘Unpack’ Key D.C. Court, NPR (May 29, 2013),
https://www.npr.org/sections/itsallpolitics/2013/05/29/186952724/Senators-Tussle-Over-Unpacking-Key-D-C-Court.
101 See, e.g., “Making Predictions About Nominees” section of CRS Report R47050, The Nomination of Judge Ketanji
Brown Jackson to the Supreme Court, coordinated by David Gunter (2022); “Predicting a Nominee’s Future Court
Decisions” section of CRS Report R46562, Judge Amy Coney Barrett: Her Jurisprudence and Potential Impact on the
Supreme Court, coordinated by Valerie C. Brannon, Michael John Garcia, and Caitlain Devereaux Lewis (2020).
102 See, e.g., Brannon et al., supra note 101, “Criminal Law and Procedure” section (“Criminal law and procedure is an
area where Supreme Court alignments are often not divided neatly between the Court's more conservative and liberal
wings.”).
103 See, e.g., id., “Predicting a Nominee's Future Court Decisions” section.
104 E.g., Michael Hiltzik, Column: Ginsburg’s Death Makes Supreme Court Expansion Much More Urgent, L.A. TIMES
(Sept. 21, 2020), https://www.latimes.com/business/story/2020-09-21/ginsburg-death-court-packing-scheme; Todd
Gitlin, Republicans Have Already Packed the Supreme Court. Unpack it by Making it Bigger., USA TODAY (Oct. 29,
2020), https://www.usatoday.com/story/opinion/2020/10/29/republicans-packed-supreme-court-expand-repair-damagecolumn/6054522002/.
105 E.g., Barbara Sprunt, Biden Campaign Continues To Deflect On Court-Packing, NPR (Oct. 11, 2020),
https://www.npr.org/2020/10/11/922806310/biden-campaign-continues-to-deflect-on-court-packing.
106 E.g., Jennifer Rubin, Why Court-Packing Is a Really Bad Idea, WASH. POST (Mar. 19, 2019),
https://www.washingtonpost.com/opinions/2019/03/19/why-court-packing-is-really-bad-idea/; Nomination of Amy
Coney Barrett to the U.S. Supreme Court: Hearing Before the S. Comm. on the Judiciary, 116th Cong. 2 (2020)
(statement of Sen. Mike Lee).
107 E.g., Shapiro, supra note 30; Shoshana Weissmann & Anthony Marcum, Packing the Supreme Court Won’t Work.
Confirmation Hearings Are Already Highly Politicized., USA TODAY (Apr. 4, 2019),
https://www.usatoday.com/story/opinion/2019/04/04/packing-supreme-court-would-further-politicizecolumn/3339783002/; Talia Kaplan, Law Professor Explains Why Court Packing Is a Threat to the Supreme Court’s
Credibility, FOX NEWS (Oct. 20, 2020), https://www.foxnews.com/politics/law-professor-explains-why-court-packingis-a-threat-to-the-supreme-courts-credibility; Megan McArdle, The Tit-for-tat Supreme Court Game is About to Reach
a Catastrophic Conclusion, WASH. POST (Sept. 22, 2020), https://www.washingtonpost.com/opinions/the-tit-for-tatsupreme-court-game-is-about-to-reach-a-catastrophic-conclusion/2020/09/22/77453cda-fd0b-11ea-b5554d71a9254f4b_story.html.
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ability of the federal judiciary to administer justice impartially.108 Some proponents of Court
expansion counter that the Supreme Court has already become overly politicized in recent
decades and argue that structural changes may help depoliticize the Court.109 In response to
concerns that Court expansion would upset institutional norms, some commentators contend that
those norms are overstated or observed inconsistently110 or that the policy benefits that would
result from changing the Court’s composition would outweigh any institutional harm.111
While Court expansion proposals have multiplied in recent years, many commentators and
policymakers oppose attempts to change the size of the Supreme Court. Some Members of
Congress recently proposed a constitutional amendment that would have set the size of the
Supreme Court at nine members, preventing future attempts to enlarge the Court through
legislation.112 Another recent bill would have barred the Senate from considering legislation to
change the size of the Supreme Court unless two-thirds of Senators assented to such
consideration.113 Other commentators advocate for judicial reform but favor alternatives to
expansion that would not involve changing the size of the Supreme Court, often including
reforms discussed elsewhere in this report.114
Changes to Supreme Court Justices’ Tenure
Among other provisions intended to safeguard judicial independence,115 the Constitution
guarantees that Supreme Court Justices “shall hold their Offices during good Behaviour.”116
Under prevailing interpretations of the Constitution and long-standing historical practice, this
constitutional provision gives Supreme Court Justices life tenure unless they leave the bench
voluntarily or are impeached.117 The Good Behavior Clause may be relevant to several arguments
and proposals related to structural reform or changes to the Supreme Court.118
History and Practice on Justices’ Tenure
When the American colonists declared independence from England, they noted as one of their
grievances against the king that he had “made Judges dependent on his Will alone, for the tenure
108 E.g., Kathryn Haglin et al., Americans Don’t Trust the Supreme Court. That’s Dangerous, WASH. POST (Oct. 10,
2022), https://www.washingtonpost.com/politics/2022/10/10/supreme-court-public-opinion-legitimacy-crisis/.
109 E.g., Pema Levy, How Court-Packing Went From a Fringe Idea to a Serious Democratic Proposal, MOTHER JONES
(Mar. 22, 2019), https://www.motherjones.com/politics/2019/03/court-packing-2020/.
110 E.g., Eric Levitz, Republicans Oppose Court Packing (Except When They Support It), N.Y. MAG. (Oct. 14, 2020),
https://nymag.com/intelligencer/2020/10/republicans-court-packing-hypocrisy-georgia-arizona-study.html.
111 E.g., Jurecic & Hennessey, supra note 91.
112 H.J.Res. 95, 116th Cong. (2020).
113 S. 4805, 116th Cong. (2020).
114 E.g., Ian Millhiser, 9 Ways to Reform the Supreme Court Besides Court-Packing, VOX (Oct. 21, 2020),
https://www.vox.com/21514454/supreme-court-amy-coney-barrett-packing-voting-rights.
115 See, e.g., U.S. CONST. art. III, § 1 (providing that Supreme Court Justices shall “receive for their Services, a
Compensation, which shall not be diminished during their Continuance in Office”); see also THE FEDERALIST NO. 78
(Alexander Hamilton); THE FEDERALIST NO. 79 (Alexander Hamilton).
116 U.S. CONST. art. III, § 1.
117 See infra “History and Practice on Justices’ Tenure.”
118 In addition to the proposals discussed in this section, see supra “Constitutionality of Changes to the Size of the
Supreme Court”; infra “Partisan Balance and Regularized Appointments” and “Rotation Between Courts and Supreme
Court Panels.”
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of their offices.”119 Thus, when establishing the federal judiciary, the Constitution’s Framers
decided to insulate judicial tenure from political control. For instance, Alexander Hamilton stated
in the Federalist Papers that federal judges could not be expected to enforce constitutional
limitations on the federal government or protect individuals’ rights if they held temporary office
at the will of the political branches.120 Hamilton also argued that qualified jurists would be
disinclined to join and remain on the federal bench unless they enjoyed life tenure.121
To that end, Article III of the Constitution provides that Supreme Court Justices “shall hold their
Offices during good Behaviour.”122 Although the Constitution does not define good Behaviour,123
the Federalist Papers suggest that federal judges will be “secured in their places for life” so long
as “they behave properly.”124 Likewise, the Supreme Court has stated repeatedly that federal
judges enjoy life tenure and may not be removed from office except by impeachment.125 Because
Congress has never removed a Supreme Court Justice by impeachment, Justices have historically
remained on the Court until they pass away or voluntarily leave the bench.126
Existing law contemplates several ways a Justice may leave the Court voluntarily. First, Justices
who satisfy statutory age and length of service requirements may voluntarily retire from judicial
office.127 Justices who do so cease performing judicial duties but receive a salary for life.128
Second, Justices who satisfy certain age and length of service requirements may take senior
status—that is, retain judicial office but retire from active service.129 Senior Justices continue
119 THE DECLARATION OF INDEPENDENCE (1776), https://www.archives.gov/founding-docs/declaration-transcript. See
also, e.g., United States v. Hatter, 532 U.S. 557, 567–69 (2001).
120 See THE FEDERALIST NO. 78 (Alexander Hamilton) (“That inflexible and uniform adherence to the rights of the
Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be
expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated,
or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making
them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the
branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the
people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult
popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.”).
121 See, e.g., id. (“A temporary duration in office, which would naturally discourage [qualified jurists] from quitting a
lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into
hands less able, and less well qualified, to conduct it with utility and dignity.”).
122 U.S. CONST. art. III, § 1.
123 See Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 CARDOZO L.
REV. 579, 639–40 (2005) (“The Constitution does not directly address the question of what ‘good Behaviour’ means.”).
124 THE FEDERALIST NO. 79 (Alexander Hamilton).
125 See, e.g., United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955) (explaining that Article III courts “are
presided over by judges appointed for life, subject only to removal by impeachment”); N. Pipeline Constr. Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 59 (1982) (plurality opinion of Brennan, J.) (“The ‘good Behaviour’ Clause
guarantees that Art[icle] III judges shall enjoy life tenure, subject only to removal by impeachment.”); United States v.
Hatter, 532 U.S. 557, 567 (2001) (explaining that the Good Behavior Clause grants federal judges “the practical
equivalent of life tenure”).
126 See, e.g., Daniel J. Meador, Thinking About Age and Supreme Court Tenure, in REFORMING THE COURT: TERM
LIMITS FOR SUPREME COURT JUSTICES 115 (2006) (“As a practical matter, only death or a voluntary act of the justice
can terminate service on the Court.”); Todd C. Peppers & Chad M. Oldfather, Till Death Do Us Part: Chief Justices
and the United States Supreme Court, 95 MARQ. L. REV. 709, 721 (2012) (explaining that the House of Representatives
has impeached one Justice since the Constitution’s ratification, whom the Senate ultimately acquitted).
127 See 28 U.S.C. § 371(a). See also id. § 371(c) (age and length of service requirements).
128 See id. § 371(a); David R. Stras & Ryan W. Scott, Are Senior Judges Unconstitutional?, 92 CORNELL L. REV. 453,
460–61 (2007).
129 See 28 U.S.C. § 371(b). See also id. § 371(c) (age and length of service requirements).
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collecting a salary.130 Senior Justices may not hear Supreme Court cases or vote on which cases
the Court will accept,131 but they may hear cases in the intermediate federal courts of appeals and
perform other judicial and administrative duties.132 For instance, Retired Associate Justice David
H. Souter frequently sits on the U.S. Court of Appeals for the First Circuit.133 Despite having this
opportunity to retire from active service with a full salary, Justices often remain in active service
after they become eligible to take senior status,134 and it is fairly common for Justices to remain in
active service until death.135
Third, Justices who become unable to perform the office’s duties may retire for disability.136
Justices who retire for disability after 10 years of judicial service continue receiving the same
salary as their non-retired colleagues, while Justices who retire for disability after fewer than 10
years of service receive half of that salary.137
Finally, a Justice who is ineligible to retire with a salary may resign from the Court.138 For
instance, Justice Arthur Goldberg resigned after three years to become the ambassador to the
United Nations.139
A President may appoint a new Supreme Court Justice when a sitting Justice either dies,
voluntarily leaves the Court, or is impeached and convicted.140
130 See id. § 371(b), (e).
131 See id. § 294(d) (“No . . . designation or assignment [of retired Justices] shall be made to the Supreme Court.”);
David R. Stras & Ryan W. Scott, Retaining Life Tenure: The Case for a “Golden Parachute,” 83 WASH. U. L.Q. 1397,
1465 (2005) [hereinafter Stras & Scott, Golden Parachute] (“Senior Justices . . . do not vote on certiorari petitions [or]
sit by designation on the Court . . . .”).
132 See 28 U.S.C. §§ 294(a), 371(e)(1)(A)-(E).
133 See, e.g., Newton Covenant Church v. Great Am. Ins. Co., 956 F.3d 32 (1st Cir. 2020) (Souter, J.).
134 See, e.g., Roger G. Cramton, Reforming the Supreme Court, 95 CAL. L. REV. 1313, 1318 (2007) (observing that
Supreme Court Justices “only rarely take senior status when eligible to do so”).
135 See, e.g., J. Gordon Hylton, Supreme Court Justices Today Are Unlikely to Die With Their Boots On, MARQUETTE
U. L.SCH. FAC. BLOG (Mar. 12, 2012), https://law.marquette.edu/facultyblog/2012/03/supreme-court-justices-today-areunlikely-to-die-with-their-boots-on/ (“Since 1789, 102 men and one woman have left the United States Supreme Court
after varying periods of service. Forty-seven of the 103 died while still on the Court, while the other 56 retired.”). Since
that article was written, four Justices have left the Court, two through retirement and two through death. See Sup. Ct.
Hist. Soc’y, Previous Associate Justices, https://supremecourthistory.org/associate-justices/ (last visited Jan. 5, 2023).
136 28 U.S.C. § 372(a).
137 Id.
138 See Lisa T. McElroy & Michael C. Dorf, Coming Off the Bench: Legal and Policy Implications of Proposals to
Allow Retired Justices to Sit by Designation on the Supreme Court, 61 DUKE L.J. 81, 105 (2011).
139 See, e.g., Charles S. Doskow, The Juvenile Death Penalty: The Beat Goes On, 24 J. JUV. L. 45, 56 (2004).
140 See, e.g., 28 U.S.C. § 371(d) (“The President shall appoint, by and with the advice and consent of the Senate, a
successor to a justice . . . who retires under this section.”); id. § 372(a) (“Any justice . . . of the United States appointed
to hold office during good behavior who becomes permanently disabled from performing his duties may retire from
regular active service, and the President shall, by and with the advice and consent of the Senate, appoint a successor.”).
A Justice may announce his retirement in advance, and the political branches may nominate and confirm a successor
before the retirement takes effect, in anticipation of the vacancy. For instance, on January 27, 2022, Justice Stephen G.
Breyer announced that he would retire from active service as an Associate Justice of the Supreme Court at the end of
the Court’s current Term, “assuming that by then [his] successor has been nominated and confirmed.” Letter from
Stephen Breyer, Justice, U.S. Supreme Ct., to Joseph Biden, Pres. of the United States, White House (Jan. 27, 2022),
https://www.supremecourt.gov/publicinfo/press/Letter_to_President_January-27-2022.pdf. President Biden nominated
then-Judge Ketanji Brown Jackson to fill Justice Breyer’s seat, and the Senate confirmed her on April 7, 2022. Justice
Breyer’s retirement took effect on June 30, 2022, and Justice Jackson was sworn into office the same day. Dareh
Gregorian, Ketanji Brown Jackson Sworn in as First Black Woman on the Supreme Court, NBC NEWS (June 30, 2022),
https://www.nbcnews.com/politics/supreme-court/ketanji-brown-jackson-sworn-supreme-court-justice-rcna36115. See
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The Debate over Life Tenure
Commentators who support life tenure assert that it may promote various policy goals:
•
•
•
•
Judicial Independence—Life tenure prevents the political branches from using
the threat of removal to influence the Justices’ decisions.141 Requiring Justices to
leave the bench before they want to retire could also encourage Justices to
modify their rulings to curry favor with future employers and clients.142
Doctrinal Stability—Life tenure reduces turnover on the Court, which may
promote stability in Supreme Court precedent.143
Judicial Experience—Lifetime appointments give Justices more time to develop
skills and expertise, which may improve the Court’s decisionmaking.144
Attracting and Retaining Qualified Candidates—Life tenure may encourage
highly qualified jurists to join and remain on the Court.145
Others dispute that Supreme Court Justices should enjoy life tenure.146 Opponents criticize life
tenure on the following grounds:
•
•
Physical and Mental Decline—Life tenure may result in Justices remaining on
the bench after failing health renders them unable to perform judicial duties.147
Strategic Retirements—If Justices can choose when to retire, they may time their
retirements so a President with similar ideological views can appoint their
successors.148
also Authority of the President to Prospectively Appoint a Supreme Court Justice, 46 Op. O.L.C. (Apr. 6, 2022),
https://www.justice.gov/olc/file/1494816/download.
141 See, e.g., Mary L. Clark, Judicial Retirement and Return to Practice, 60 CATH. U. L. REV. 841, 888 (2011) (arguing
that life tenure “promotes institutional independence because a high degree of security of tenure promotes the
judiciary’s autonomy to review and interpret the law”).
142 See, e.g., Ward Farnsworth, The Regulation of Turnover on the Supreme Court, 2005 U. ILL. L. REV. 407, 446
(2005); William G. Ross, The Hazards of Proposals to Limit the Tenure of Federal Judges and to Permit Judicial
Removal Without Impeachment, 35 VILL. L. REV. 1063, 1137 (1990).
143 See Stras & Scott, Golden Parachute, supra note 131, at 1422 (arguing that life tenure “decelerates the rate of legal
change”); Arthur D. Hellman, Reining in the Supreme Court: Are Term Limits the Answer?, in REFORMING THE COURT:
TERM LIMITS FOR SUPREME COURT JUSTICES 308–09 (2006) (predicting that “stare decisis would get even less respect
on a Court whose membership was changing every two years”); Christopher Sundby & Suzanna Sherry, Term Limits
and Turmoil: Roe v. Wade’s Whiplash, 98 TEX. L. REV. 121, 156 (2019) (suggesting that Supreme Court term limits
could “destabilize important constitutional precedents” and “change the way that constitutional jurisprudence evolves
by pushing it away from gradual shifts and towards more sudden jolts”).
144 See, e.g., Clark, supra note 141, at 889; Ross, supra note 142, at 1087.
145 See Clark, supra note 141, at 889; THE FEDERALIST NO. 78 (Alexander Hamilton).
146 See, e.g., L.A. Powe Jr., Old People and Good Behavior, 12 CONST. COMMENT. 195, 196 (1995) (characterizing life
tenure for Supreme Court Justices as “the Framers’ greatest lasting mistake”).
147 See, e.g., David J. Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th
Amendment, 67 U. CHI. L. REV. 995, 995 (2000) [hereinafter Garrow, Mental Decrepitude] (claiming that the Court’s
history “is replete with repeated instances of [J]ustices casting decisive votes or otherwise participating actively in the
Court’s work when their colleagues and/or families had serious doubts about their mental capacities”); Steven G.
Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 HARV. J.L. & PUB.
POL’Y 769, 838 (2006) (arguing that “limiting the length of service of any Justice to only eighteen years would reduce
greatly the likelihood of a Justice continuing service on the Court despite incapacity”).
148 See, e.g., Calabresi & Lindgren, supra note 147, at 802; Philip D. Oliver, Systematic Justice: A Proposed
Constitutional Amendment to Establish Fixed, Staggered Terms for Members of the United States Supreme Court,
47 OHIO ST. L.J. 799, 805 (1986).
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•
•
•
•
Judicial Inexperience—Life tenure may encourage Presidents to nominate
younger, less experienced jurists.149
Irregular Vacancies—If Justices remain on the Court until they die or voluntarily
retire, judicial vacancies may arise at irregular intervals.150 This may cause
uncertainty and political disruptiveness and has given different Presidents
unequal opportunities to appoint Supreme Court Justices.151
Political Unresponsiveness—Life tenure may render Justices unresponsive to the
electorate and prevailing social views.152
Judicial Activism—Life tenure may embolden Justices to behave more like
policymakers than neutral arbiters.153
Some who oppose life tenure support term limits for Supreme Court Justices.154 Term limit
proposals are not new. Commentators and legislators have advanced such proposals at various
points in the nation’s history, sometimes in response to high-profile judicial decisions.155 To date,
no such proposals have been enacted.
In recent years, commentators have offered numerous Supreme Court term limit proposals that
vary with respect to (1) the term’s length, (2) whether the term would be renewable, and
(3) whether Justices could continue to hear lower court cases or perform other duties after their
terms expire.156 The most common proposal is to limit Supreme Court Justices’ terms to 18
years.157 Such proposals would stagger Justices’ terms so that one Justice would depart the bench
every two years.158 Justices would receive a fixed salary for life after their terms expire.159 While
149 See, e.g., James E. DiTullio & John B. Schochet, Saving This Honorable Court: A Proposal to Replace Life Tenure
on the Supreme Court With Staggered, Nonrenewable Eighteen-Year Terms, 90 VA. L. REV. 1093, 1096 (2004);
Calabresi & Lindgren, supra note 147, at 836–37.
150 See, e.g., Calabresi & Lindgren, supra note 147, at 832–33.
151 See, e.g., Cramton, supra note 134, at 1321 (“Because vacancies are uneven over time but sometimes are bunched,
one President may make five appointments in a four-year term and others make none.”); DiTullio & Schochet, supra
note 149, at 1096.
152 See, e.g., Michael J. Mazza, A New Look at an Old Debate: Life Tenure and the Article III Judge, 39 GONZ. L. REV.
131, 156 (2004) (arguing that “rotating offices helps a country’s institutions stay in touch with the people whom they
are supposed to serve”); Cramton, supra note 134, at 1321 (“Decisions having great moment for the nation’s future are
made by Justices whose appointments came many years before and who may not be influenced by, or even
knowledgeable about, the views of those voters who are members of generations other than that of the most elderly.”).
153 See, e.g., Calabresi & Lindgren, supra note 147, at 823; John O. McGinnis, Justice Without Justices, 16 CONST.
COMMENT. 541, 541–42 (1999); Saikrishna B. Prakash, America’s Aristocracy, 109 YALE L.J. 541, 544 (1999).
154 See, e.g., Calabresi & Lindgren, supra note 147, at 772; John Harrison, The Power of Congress Over the Terms of
Justices of the Supreme Court, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES 373 (2006);
Prakash, supra note 153, at 568; Oliver, supra note 148, at 800. See also Supreme Court Term Limits and Regular
Appointments Act of 2023, H.R. 4423, 118th Cong. (2023).
155 See, e.g., 103 CONG. REC. S10863 (daily ed. July 3, 1957) (Res. of the Leg. of Ala. to the S. Comm. on the
Judiciary) (proposal in the wake of Brown v. Board of Education for a constitutional amendment setting term limits for
federal judges and changing how judges would be selected).
156 See, e.g., Stephen B. Burbank, Alternative Career Resolution II: Changing the Tenure of Supreme Court Justices,
154 U. PA. L. REV. 1511, 1511 (2006).
157 See, e.g., Calabresi & Lindgren, supra note 147, at 772; DiTullio & Schochet, supra note 149, at 1096–97; Powe,
supra note 146, at 197; Oliver, supra note 148, at 800.
158 See, e.g., Calabresi & Lindgren, supra note 147, at 772; DiTullio & Schochet, supra note 149, at 1119; Powe, supra
note 146, at 197. Assuming the Court continued to comprise nine Justices, this would mean that each President could
appoint two new Justices during each four-year presidential term.
159 See, e.g., Calabresi & Lindgren, supra note 147, at 843; Charles S. Collier, The Supreme Court and the Principle of
Rotation in Office, 6 GEO. WASH. L. REV. 401, 424 (1938).
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retired Justices could continue hearing cases on the federal appellate courts, they would no longer
rule on Supreme Court cases or would sit on the Supreme Court only to fill temporary
vacancies.160
Alternatively, some opponents of life tenure advocate a mandatory retirement age for Supreme
Court Justices rather than a term limit.161
Constitutionality of Legislation Modifying Life Tenure
Because Article III guarantees that Supreme Court Justices “shall hold their Offices during good
Behaviour,”162 most commentators agree that Congress could not impose a term or age limit for
Supreme Court Justices without amending the Constitution.163 Some commentators dispute that
modifying judicial tenure would require a constitutional amendment.164 Emphasizing that Article
III states that Justices “shall hold their Offices during good Behaviour” rather than “hold their
Offices for life,” these scholars interpret the Good Behavior Clause as a protection from partisan
impeachment rather than a guarantee of life tenure.165 According to these commentators, so long
as Justices enjoy tenure that is long enough to guarantee their decisional independence, and so
long as Justices may continue to exercise judicial duties on the lower courts for the rest of their
lives after their terms expire, congressional modifications to judicial tenure would not violate the
Good Behavior Clause.166
Assuming that a dispute over legislation modifying Justices’ tenure would be justiciable, a court
might reject that argument for several reasons. Beginning with the Constitution’s text,167 it is not
clear that Justices barred from participating fully in the Court’s activities still “hold their Offices”
within the meaning of Article III.168 If that is correct, a court could find that precluding Supreme
160 See Calabresi & Lindgren, supra note 147, at 825; DiTullio & Schochet, supra note 149, at 1120 n.105; Collier,
supra note 159, at 423.
161 See, e.g., Garrow, Mental Decrepitude, supra note 147, at 1086–87 (proposing “a constitutional amendment
mandating compulsory retirement at age seventy-five”).
162 U.S. CONST. art. III, § 1.
163 See, e.g., David J. Garrow, Protecting and Enhancing the U.S. Supreme Court, in REFORMING THE COURT: TERM
LIMITS FOR SUPREME COURT JUSTICES 278 (2006) [hereinafter Garrow, Protecting and Enhancing] (claiming that “the
overwhelming consensus of the critical commentary . . . indicates that only a change in the Constitution itself could
properly convert Justices of the Supreme Court into simply lesser Article III federal judges”). See also, e.g., Stras &
Scott, Golden Parachute, supra note 131, at 1421 (“The Constitution prevents Congress from tinkering with life tenure
through the ordinary legislative process.”); DiTullio & Schochet, supra note 149, at 1097 (“Ending life tenure would
require a constitutional amendment.”).
164 See, e.g., Cramton, supra note 134, at 1334; Alan B. Morrison, Opting for Change in Supreme Court Selection, and
for the Chief Justice, Too, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES 209 (2006); Sanford
Levinson, Life Tenure and the Supreme Court: What Is To Be Done?, in REFORMING THE COURT: TERM LIMITS FOR
SUPREME COURT JUSTICES 377 (2006).
165 See, e.g., Levinson, supra note 164, at 379 (“Neither the text nor the presumed purpose of [Article III] rules out the
following argument: The ‘good behaviour’ clause guarantees that judges, whatever their term of service, cannot be
removed from office for partisan political reasons that would, by definition, threaten the very idea of judicial
independence.... One could argue that the ‘good behaviour’ clause is a protection against partisan impeachment, but
most definitely not an assignment of the office literally for life.”).
166 See, e.g., Cramton, supra note 134, at 1334 (arguing that Congress could impose term limits legislatively so long as
Justices whose terms expired continued to enjoy “life tenure on a constitutional court” and the term was “lengthy, fixed
in time, non-renewable and [could not] be affected by the political branches of government”).
167 See, e.g., NLRB v. New Vista Nursing & Rehab., 719 F.3d 203, 221 (3d Cir. 2013) (“When interpreting the
Constitution, ‘we begin with its text.’ ”) (quoting City of Boerne v. Flores, 521 U.S. 507, 519 (1997)).
168 See, e.g., Stras & Scott, Golden Parachute, supra note 131, at 1418 (arguing that “any plan that exiles Supreme
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Court Justices from hearing Supreme Court cases solely because they have served for a specified
number of years or reached a certain age to be tantamount to removing Justices from office for
reasons other than their behavior in contravention of the Good Behavior Clause.169
A court considering the constitutionality of a term or age limit might also examine the
Constitution’s structure.170 Article III grants the Supreme Court a unique constitutional status by
distinguishing the “one supreme Court” from the “inferior Courts”—that is, the lower federal
courts created by Congress.171 Thus, a court might hold that a Justice barred from hearing cases
on the “one supreme Court” and relegated to hearing cases on the “inferior Courts” no longer
holds the office of Supreme Court Justice under the Good Behavior Clause.172
Historical sources may also suggest that Congress cannot modify life tenure by statute. For
instance, courts often consult the Federalist Papers when interpreting the Constitution.173 As
discussed above, the Federalist Papers describe the Good Behavior Clause as “secur[ing]
[Supreme Court Justices] in their places for life” to ensure their “complete independence” from
the political branches.174 Consequently, the Framers appear to have understood the Good
Behavior Clause to preclude congressional modifications to judicial tenure.175
No court has considered whether a term- or age-limit statute would be constitutional because
Congress has never enacted one.176 However, the Supreme Court has interpreted the Good
Behavior Clause to guarantee life tenure and curb legislative influence over the federal
Court Justices to the lower courts after serving a term of years or reaching a certain age would violate the Constitution”
because “the essential powers and duties of a ‘judge’ include the power to adjudicate disputes that come before the
court”); William Van Alstyne, Constitutional Futility of Statutory Term Limits for Supreme Court Justices, in
REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES 391 (2006); Richard A. Epstein, Mandatory
Retirement for Supreme Court Justices, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES 416
(2006).
169 See Stras & Scott, Golden Parachute, supra note 131, at 1404, 1407 (arguing that “whatever misbehavior meant at
the founding, it did not include serving eighteen years on the bench or turning seventy”).
170 See, e.g., Fin. Oversight & Mgmt. Bd. v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1656 (2020) (examining the
Constitution’s structure as an aid to constitutional interpretation).
171 See U.S. CONST. art. III, § 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.” (emphasis added)).
172 See, e.g., Epstein, supra note 168, at 417 (“[Article III’s text] make[s] tolerably clear that the appointment for each
judge is to a particular office, and that service in that office is what is guaranteed for the length of good behavior. The
Constitution’s reference to judges on both the Supreme and inferior courts suggests that judges are appointed to a single
position, and not to the bench.... ”); Stras & Scott, Golden Parachute, supra note 131, at 1418 (arguing that “because
the essential powers and duties of a ‘judge’ include the power to adjudicate disputes that come before the court, any
plan that exiles Supreme Court Justices to the lower courts after serving a term of years or reaching a certain age would
violate the Constitution”); Calabresi & Lindgren, supra note 147, at 863 (arguing that the Constitution “contemplates a
separate office of Supreme Court Justice to which individuals must be appointed for life and not merely for eighteen
years”).
173
See, e.g., Evenwel v. Abbott, 136 S. Ct. 1120, 1127 (2016).
174 THE FEDERALIST NO. 78 (Alexander Hamilton); THE FEDERALIST NO. 79 (Alexander Hamilton); see also United
States v. Hatter, 532 U.S. 557, 567 (2001) (explaining that granting federal judges “the practical equivalent of life
tenure[ ] helps to guarantee what Alexander Hamilton called the ‘complete independence of the courts of justice’ ”);
supra “History and Practice.”
175 See, e.g., Stras & Scott, Golden Parachute, supra note 131, at 1402–03 (“The debate at the founding gives no
indication that Congress enjoys the power to modify life tenure. For example, Alexander Hamilton in the Federalist
Papers and the author of the ‘Brutus’ essays disagreed sharply over the virtues of life tenure, but neither doubted that
the proposed Constitution required it.”) (footnote omitted); Van Alstyne, supra note 168, at 390 (arguing that the
founding generation would not have interpreted Article III to allow term limits).
176 See, e.g., Burbank, supra note 156, at 1512–13.
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judiciary.177 Thus, existing precedent may counsel against an interpretation of Article III that
would authorize Congress to affect judicial tenure legislatively.
Some commentators argue that the Supreme Court’s 1803 decision in Stuart v. Laird supports the
constitutionality of a term- or age-limit statute.178 In Stuart, the Court upheld a statute that
required Supreme Court Justices to “ride circuit”—that is, to spend a portion of each year hearing
lower federal court cases—on the grounds that Congress had required circuit riding since the
establishment of the lower courts through the Judiciary Act of 1789.179 If Congress can require
Supreme Court Justices to spend a portion of each year hearing lower court cases, this argument
goes, Congress could require Justices to spend the final years of their judgeships hearing lower
court cases exclusively.180 However, Stuart did not hold that Congress could require Justices to sit
on the lower courts to the exclusion of participating in the work of the Supreme Court.
Considerations for Congress
If Congress opts to modify Supreme Court Justices’ tenure, the approach least likely to raise
constitutional issues would be to amend the Constitution.181 If Congress proposed such an
amendment, it would face choosing whether to impose a term limit, an age limit, or some other
modification to life tenure. The option Congress selects could depend on its policy goals. For
instance, if Congress’s primary reason for modifying life tenure is to regularize Supreme Court
vacancies, it might prefer terms that expire at fixed intervals.182 By contrast, if Congress’s
primary concern is the risk that older Justices may remain on the bench after failing health
renders them unable to perform judicial duties, it might prefer a mandatory retirement age.183
Congress could also consider ways to address Supreme Court Justices’ tenure through ordinary
legislation. Several recent proposals would seek to limit Justices’ time on the bench while
adhering to the limitations of the Good Behavior Clause.184
Term Limits by Constitutional Amendment
If Congress decided to limit Justices’ terms via a constitutional amendment, it would face
selection of the term’s length. Scholars have proposed terms of varying durations ranging from
six months to 20 years.185 The most common proposal involves staggered 18-year terms that
177 See supra note 125 and accompanying text.
178 See Cramton, supra note 134, at 1333–34.
179 See Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803). See generally David R. Stras, Why Supreme Court Justices
Should Ride Circuit Again, 91 MINN. L. REV. 1710 (2007) (discussing circuit riding); Steven G. Calabresi & David C.
Presser, Reintroducing Circuit Riding: A Timely Proposal, 90 MINN. L. REV. 1386 (2006) (same); Joshua Glick, On the
Road: The Supreme Court and the History of Circuit Riding, 24 CARDOZO L. REV. 1753 (2003) (same).
180 See Cramton, supra note 134, at 1333–34.
181 Congress may propose constitutional amendments by a two-thirds vote of both houses of Congress. See U.S. CONST.
art. V (“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this
Constitution . . . .”). See also id. (authorizing “the Legislatures of two thirds of the several States” to “call a Convention
for proposing amendments”). An amendment proposed in this way becomes effective if three-fourths of the states vote
to ratify it. See id. (providing that amendments “shall be valid to all Intents and Purposes, as Part of this Constitution,
when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the
one or the other Mode of Ratification may be proposed by the Congress”).
182 See supra notes 150–151 and accompanying text.
183 See supra note 147 and accompanying text.
184 See infra “Statutory Options.”
185 See, e.g., L.H. Larue, “Neither Force Nor Will,” 12 CONST. COMMENT. 179, 182 (1995) (proposing 10–15 year
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would create a vacancy every two years.186 While some maintain that shorter terms could
encourage judicial restraint, others contend that shorter terms could undermine judicial
independence.187
Because the Constitution does not specify how many Justices the Court will have,188 staggered
terms present unique practical considerations. Although a federal statute presently sets the Court’s
membership at nine Justices,189 Congress has changed the Court’s size various times and could
conceivably do so again.190 For mathematical reasons, proposals to establish staggered, 18-year
terms that create a vacancy every two years may not operate as intended if the Court does not
have nine Justices.191 Thus, if Congress amended the Constitution to impose term limits, it might
consider also amending the Constitution to prohibit changes to the Court’s size or creating
variable terms that change depending on the Court’s size to try to ensure that only one vacancy
arises every two years.
Another question is whether terms should be renewable. While many term limit proposals would
establish nonrenewable terms,192 others would permit the President to reappoint Justices after
their terms expire.193 While some commentators claim that the prospect of reappointment would
make Justices more productive and responsive to the electorate,194 others argue that opportunities
for reappointment would encourage Justices to alter their votes to appease the appointing
President.195
Finally, there are practical questions about what should happen if a Justice leaves the bench
before his or her term expires or if the Senate refuses to consider or confirm nominees as termlimited Justices leave the Court. Some proposals would allow term-limited Justices to sit on the
Court temporarily to fill unscheduled vacancies due to the retirement, death, or disability of a
Justice.196 The drafters of a constitutional amendment could also consider how to ensure that the
Senate considers and confirms qualified nominees or that the Court is adequately staffed if the
Senate fails to do so.
terms); Henry Paul Monaghan, The Confirmation Process: Law or Politics?, 101 HARV. L. REV. 1202, 1212 (1988)
(advocating 15–20 year terms); Collier, supra note 159, at 419 (supporting terms of “twelve years or less”). Cf.
McGinnis, supra note 153, at 541, 546 (proposing that “federal judges sitting on the inferior courts of the United
States” be “randomly assigned to the Supreme Court for short periods, such as six months or a year”).
186 See supra “The Debate over Life Tenure.”
187 Compare, e.g., McGinnis, supra note 153, at 542 (arguing that judges who served on “the Supreme Court only for a
short time” would be “more likely to treat constitutional issues and other momentous decisions” like “quotidian
matters”), with, e.g., DiTullio & Schochet, supra note 149, at 1128–29 (maintaining that “shorter nonrenewable terms
(six years, for instance)” could “increase the risk of justices seeking to curry favor with potential post-Court
employers”).
188 See supra “History and Practice on the Size of the Court”; see also U.S. CONST. art. III.
189 See 28 U.S.C. § 1 (“The Supreme Court of the United States shall consist of a Chief Justice of the United States and
eight associate justices . . . .”).
190 See supra “History and Practice on the Size of the Court.”
191 See DiTullio & Schochet, supra note 149, at 1146 n.178.
192 See, e.g., id. at 1127–28; Powe, supra note 146, at 197.
193 See Prakash, supra note 153, at 568.
194 See id. at 571 (“Presidents would not bother attempting to reappoint lazy, senile, or incompetent judges.”); id. at 576
(“The representative branches and the people should hold judges accountable for their failures and faults by declining
to reappoint . . . them.”).
195 See, e.g., Oliver, supra note 148, at 826; DiTullio & Schochet, supra note 149, at 1127.
196 E.g., H.R. 4423, 118th Cong (2023); H.R. 5566, 118th Cong. (2023); H.R. 5140, 117th Cong. (2021); H.R. 8500,
117th Cong. (2022).
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Age Limits by Constitutional Amendment
Establishing a mandatory retirement age for Supreme Court Justices would implicate different
considerations. For instance, while a mandatory retirement age could mitigate concerns about
aging Justices, it would not affect the President’s incentive to appoint younger, less-experienced
nominees.197
Some have argued that amending the Constitution to impose a specific maximum age could be
shortsighted, as future medical advances could increase life expectancies or reduce the incidence
of disabling health conditions in older populations.198 Thus, Congress might explore amending the
Constitution to authorize Congress to set the mandatory retirement age by statute. However, if the
Constitution permitted Congress to change the mandatory retirement age by ordinary legislation,
future Congresses might modify the maximum age when they approved or disapproved of the
Court’s composition—a result that could introduce additional political considerations into the
appointment process.199
Statutory Options
Notwithstanding the constitutional limits discussed above,200 some Members of Congress have
proposed legislation that would have imposed term limits for Supreme Court Justices. One such
proposal, the Supreme Court Term Limits and Regular Appointments Act of 2023, would allow
the President to appoint two Supreme Court Justices during each four-year presidential term, one
each “during the first and third years after a year in which there is a Presidential election.”201 It
would further provide that “after a Justice has served 18 years, that Justice shall be deemed a
Justice retired from regular active service” and shall not hear Supreme Court cases except when
designated to fill a seat vacated by a Justice who dies, becomes disabled, or is removed.202 The
proposal would exempt currently sitting Justices from the retirement provision. A related
proposal, the Supreme Court Tenure Establishment and Retirement Modernization Act of 2023,
would work similarly except that it would have also provided for automatic retirement of Justices
on the Court at the time of enactment.203 Exempting sitting Justices from an automatic retirement
provision might mitigate some constitutional concerns, because it avoids changing the tenure of
those Justices. However, it is likely that imposing term limits on new Justices would also violate
the Good Behavior Clause.
As an alternative to imposing age or term limits, some scholars advocate retaining life tenure but
creating stronger incentives for Justices to retire voluntarily.204 While these commentators
maintain that life tenure promotes doctrinal stability and judicial independence, they also
recognize that life tenure creates a risk that Justices may remain on the Court after they are unable
197 See supra notes 147, 149, and accompanying text.
198 See, e.g., Calabresi & Lindgren, supra note 147, at 840 (“It is a mistake in general to write numbers into the
Constitution because they can become obsolete with the passage of time . . . It seems quite possible that in fifty or one
hundred years a mandatory retirement age of seventy or even seventy-five might seem absurdly young if people were
routinely living to be over 100.”).
199 Cf. Harrison, supra note 154, at 372 (arguing that if Congress could modify life tenure by statute, Congress might
engage in “gamesmanship” by granting Justices life tenure when it approves of the Court’s composition and then
imposing tenure limits when it disapproves of the Court’s membership).
200 See supra “Constitutionality of Legislation Modifying Life Tenure.”
201 H.R. 4423, 118th Cong. (2023); see also H.R. 5140, 117th Cong. (2021).
202 Id.
203 H.R. 5566, 118th Cong. (2023).
204 See, e.g., Clark, supra note 141, at 856; Stras & Scott, Golden Parachute, supra note 131, at 1439.
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to perform judicial duties.205 Thus, these scholars advocate encouraging Justices to retire earlier
by increasing their pensions.206 Because this proposal would still allow Justices to choose when to
retire, it would likely not require a constitutional amendment to implement.207 Congress could
also consider encouraging earlier retirement in other ways. For example, some have advocated
making long service on the Court less attractive by increasing the Justices’ workload, including
by reestablishing the discontinued circuit-riding requirement208 or by reducing how many law
clerks Justices may hire.209
Other Structural Changes to the Supreme Court
While Supreme Court expansion and the imposition of term limits are the proposals that have
garnered the most attention in recent years, some commentators have proposed other structural
reforms. Often, those reforms would involve changes to the Court’s size or Justices’ tenure in
addition to other changes.
Congress has never enacted legislation similar to the proposals discussed in this section, and
therefore the federal courts have had no occasion to consider their constitutionality. To the extent
any proposal would raise constitutional issues if implemented by ordinary legislation, Congress
could instead seek to amend the Constitution.
Partisan Balance and Regularized Appointments
Some Court reform proposals would both change the size of the Court and seek to impose
ideological balance on the tribunal. Specifically, a proposal known as the “Balanced Bench”
would expand the Court to include 15 Justices: five permanent Justices affiliated with
Republicans, five permanent Justices affiliated with Democrats, and five temporary Justices
drawn from the lower federal courts and chosen unanimously by the 10 permanent Justices.210
Another proposal would reduce the size of the Court to eight Justices, evenly divided between
Democratic- and Republican-affiliated jurists.211 A prior section of this report analyzes the
constitutionality of these provisions to the extent they would change the size of the Court.212 The
proposals might also raise other constitutional issues.
First, partisan balance proposals may conflict with Article II’s Appointments Clause, which
provides that the President “shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint ... Judges of the supreme Court.”213 In particular, the Balanced Bench
205 See Stras & Scott, Golden Parachute, supra note 131, at 1422, 1424, 1437.
206 See, e.g., Clark, supra note 141, at 890; Stras & Scott, Golden Parachute, supra note 131, at 1402; Kevin T.
McGuire, Are the Justices Serving Too Long? An Assessment of Tenure on the U.S. Supreme Court, 89 JUDICATURE 8,
15 (2005). See also supra “History and Practice” (discussing existing laws governing pensions for retired Justices).
207 See Stras & Scott, Golden Parachute, supra note 131, at 1461 (arguing that this proposal would “not require a
constitutional amendment”).
208 See Stras, supra note 179, at 1734; Calabresi & Presser, supra note 179, at 1416. See also supra note 179 and
accompanying text.
209 See Garrow, Protecting and Enhancing, supra note 163, at 285.
210 Epps & Sitaraman, supra note 92.
211 Segall, supra note 93.
212 See supra “Constitutionality of Changes to the Size of the Supreme Court.”
213 U.S. CONST. art. II, § 2, cl. 2; see also Cong. Research Serv., Appointments of Justices to the Supreme Court,
CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artII-S2-C2-3-5/ALDE_00013096/ (last
visited Jan. 5, 2023).
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proposal might violate that provision by allowing Supreme Court Justices, rather than the
President and Senate, to appoint other Justices. The proposal’s authors assert that their proposal
would comply with the Appointments Clause because Justices would be selected from among
Article III judges who had already been nominated and confirmed to the lower courts. They point
to practices such as judges sitting by designation on courts other than the ones they were
confirmed to and contend that “existing law and practice permit significant flexibility in the
movement of Article III judges within the federal judiciary.”214 This proposal raises the question,
discussed above, whether the “office” of a Supreme Court Justice is equivalent to a judge that has
been confirmed to serve on the courts of appeals.
The proposal for an eight-Justice Court would base the partisan balance requirement on the
Justices’ own party affiliation rather than that of the nominating President. The author of the
proposal suggests that the Senate could impose the requirement by modifying its rules for
confirming Supreme Court nominees.215 Because that proposal would not require nomination by
someone other than the President, it might be less likely to raise concerns under Article II.
Moreover, to the extent the requirement hinged on the Senate’s own internal procedures, the
federal courts might deem a challenge to the requirement to pose a nonjusticiable political
question.216
In addition, some commentators have noted that partisan balance requirements might undermine
the First Amendment’s protections for freedom of speech and political association because, by
basing the requirement on membership in the two currently dominant political parties, such
proposals “may be seen as locking the major parties as they exist today into control over Court
appointments.”217 Relatedly, by explicitly associating Justices with a political party, some might
argue that partisan balance requirements would be inconsistent with the ideal of judges as nonpolitical actors.218
As an alternative to partisan balance requirements, some proposals would regularize the timing of
Supreme Court appointments. These proposals would provide for each President to appoint the
same number of Justices, usually two per term.219 They would not require that the Court have any
particular political composition—if candidates from one political party won several presidential
elections in a row, Presidents from that party would have multiple opportunities to nominate
Justices and, potentially, significantly shift the ideological balance of the Court. Instead, the
214 Epps & Sitaraman, supra note 92, at 201.
215 Segall, supra note 93, at 554.
216 See Cong. Research Serv., Congressional Governance as a Political Question, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C1-9-7/ALDE_00001289/ (last visited Jan. 5, 2023).
217 SCOTUS Commission Report, supra note 28, at 89. In a recent Supreme Court case, a political independent
challenged a state court partisan balance requirement on First Amendment grounds, but the Supreme Court did not
reach the First Amendment question because it held the challenger lacked standing to sue. Carney v. Adams, 141 S. Ct.
493 (2020).
218 Cf. 2A GUIDE TO JUDICIARY POLICY, CODE OF CONDUCT FOR UNITED STATES JUDGES Canon 5, at 18 (Mar. 12, 2019),
https://www.uscourts.gov/sites/default/files/code_of_conduct_for_united_states_judges_effective_march_12_2019.pdf
(“A Judge Should Refrain From Political Activity”) [hereinafter JUDGES’ CODE OF CONDUCT]. As discussed further
below, the Judges’ Code of Conduct does not bind Supreme Court Justices, but Justices consult the Code when
considering ethical questions. See infra “Judicial Ethics.”
219 E.g., H.R. 4423, 118th Cong (2023); H.R. 5566, 118th Cong. (2023); H.R. 5140, 117th Cong. (2021); H.R. 8500,
117th Cong. (2022); Jack M. Balkin, Don’t Pack the Court. Regularize Appointments, BALKINIZATION (Oct. 5, 2020),
https://balkin.blogspot.com/2020/10/dont-pack-court-regularize-appointments.html.
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proposals would seek to reduce the randomness of Supreme Court appointments, depoliticize the
confirmation process, and reduce the incentive for Justices to retire strategically.220
The proposals vary in how they would manage the Court’s size following new appointments. One
proposal would require the longest-tenured sitting Justice to retire from active service with each
new appointment.221 Another proposal would impose the same requirement on Justices nominated
after the proposal was enacted, so new Justices would serve 18-year terms, but Justices on the
bench at the time of enactment would be exempt from the retirement rule.222 A third proposal
would divide the Court into two panels, with only the nine most junior justices hearing most
cases.223 Each of these means of managing the Court’s size might raise constitutional questions,
which are discussed in other sections of this report.224 Legislation that authorized Supreme Court
appointments at regular intervals would likely be found constitutional.
Rotation Between Courts and Supreme Court Panels
Some Court reform proposals would have federal judges rotate between the Supreme Court and
the lower federal courts. One proposal, dubbed the “Supreme Court Lottery,” would provide that
“every judge on the federal courts of appeals would also be appointed as an Associate Justice of
the Supreme Court.”225 A panel of nine Justices would be selected at random to hear each
Supreme Court case. Among other things, this proposal would also impose a partisan balance
requirement such that “each panel would be prohibited from having more than five Justices
nominated by a President of a single political party.”226 Another proposal would “simply ...
eliminate the position of Supreme Court Justice,” instead allowing randomly selected judges from
the lower federal courts to sit on the Supreme Court for temporary terms, such as six months or a
year.227 A third proposal would “increase the size of the Supreme Court to 16 justices, drawn
exclusively from the pool of Article III appellate judges, sitting in panels, serving 16-year
terms.”228
Other proposals would divide the Supreme Court into multiple panels. One such proposal would
allow the President to appoint one Supreme Court Justice in each odd-numbered year, meaning
that each President would appoint two Justices in a four-year term.229 Congress would then create
“two en banc courts:” one “for deciding cases under the Court’s original jurisdiction, consisting
of all the active Justices,” and a second “for deciding cases under the Court's appellate
jurisdiction, consisting of the nine Justices most junior in service.”230 Another proposal would
divide the Court into two seven-Justice chambers, with one panel considering issues of statutory
220 See Balkin, supra note 219.
221 H.R. 5566, 118th Cong. (2023). Retired Justices would be able to sit by designation on the lower federal courts but
would not be able to hear Supreme Court cases except to replace Justices who died or retired before their terms expired.
222 H.R. 4423, 118th Cong (2023).
223
See Balkin, supra note 219.
224 See supra “Changes to Supreme Court Justices’ Tenure”; infra “Rotation Between Courts and Supreme Court
Panels.”
225 Epps & Sitaraman, supra note 92, at 181–93.
226 Id. at 181.
227 McGinnis, supra note 153, at 541.
228 Presidential Commission on the Supreme Court of the United States 3 (July 20, 2021) (written testimony of Jamal
Greene, Prof., Columbia Law Sch.), https://www.whitehouse.gov/wp-content/uploads/2021/07/Greene-Testimony.pdf.
229 Balkin, supra note 219.
230 Id. See also Supreme Court Biennial Appointments and Term Limits Act of 2023, S. 3096, 118th Cong. (2023).
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interpretation and the other considering constitutional issues.231 The full 14-member Court could
“convene in joint sessions to rule on matters of the highest importance.”232
Proposals that would rotate judges between courts or divide the Supreme Court into panels might
conflict with Article III’s provision that there shall be “one supreme Court,” distinct from “such
inferior Courts as the Congress may from time to time ordain and establish.”233 Supporters of
such proposals argue that the Constitution does not require a strict division between the Supreme
Court and the inferior courts. They point to the historical practice of circuit riding, where
Supreme Court Justices regularly heard cases on the federal circuit courts,234 as well as the
current practice of sitting by designation, where active or retired judges (including Supreme Court
Justices) sit temporarily on courts other than the ones to which they were confirmed.235 While
Congress has enacted legislation allowing judges to sit by designation on the lower federal courts,
no federal statute or current or historical practice allows federal judges from the lower courts to
sit temporarily on the Supreme Court.
It is doubtful whether legislation purporting to make all federal judges, or even all circuit judges,
part-time Supreme Court Justices would meaningfully retain the “one supreme Court” set forth in
Article III of the Constitution, but some rotation or panel proposals might withstand constitutional
scrutiny.236 With no judicial precedent on point, it is difficult to know where courts would draw
the line. However, a proposal might be more likely to comply with the “one supreme Court”
requirement if it limited Supreme Court duties to a relatively small number of Justices
specifically nominated and confirmed to sit on the high court, even if not all of those Justices
participated in every case. It might also weigh in favor of constitutionality if all members of a
multi-panel Court could provide final review of matters of particular importance, similar to the
current practice of en banc review in the U.S. Courts of Appeals.237
To the extent rotation or panel proposals would apply to sitting Justices either by significantly
changing their duties or effectively removing them from the high court, the proposals might also
violate the Good Behavior Clause.238
Changes to Supreme Court Jurisdiction and
Procedures
Congress has significant power to specify the jurisdiction and procedures of the federal courts,
including the Supreme Court, though the Constitution imposes some limits on such legislation.
Prominent recent proposals in this area include changing how the Court handles certain
231 Bruce Ackerman, Trust in the Justices of the Supreme Court is Waning. Here are Three Ways to Fortify the Court,
L.A. TIMES (Dec. 20, 2018), https://www.latimes.com/opinion/op-ed/la-oe-ackerman-supreme-court-reconstruction20181220-story.html. Among other things, the proposal would also limit service on the Supreme Court to 14 years,
after which Justices would move to the courts of appeals. Id.
232 Id.
233 U.S. CONST. art. III, § 1.
234 See Judiciary Act of 1789, ch. 20, § 4, 1 Stat. 73, 74–75. The Supreme Court upheld the circuit riding requirement in
Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803).
235 See 28 U.S.C. §§ 291–297.
236 See SCOTUS Commission Report, supra note 28, at 85.
237 See 28 U.S.C. § 46.
238 See supra “Constitutionality of Legislation Modifying Life Tenure.”
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emergency motions;239 limiting the Court’s appellate jurisdiction over certain categories of
cases;240 imposing voting rules on the Court, such as requiring the agreement of a supermajority
of Justices before the Court could declare a law unconstitutional;241 allowing Congress to override
Supreme Court decisions;242 imposing new judicial ethics rules for Justices or changing how such
rules are enforced;243 or implementing transparency measures, such as allowing photographs or
video recordings of Supreme Court proceedings.244
Motions Practice: the “Shadow Docket”
An area of Supreme Court practice that has gained increased attention in recent years is the
Court’s motions docket, which some commentators call the “shadow docket.”245 In contrast to
merits cases, which the Court typically decides after full briefing and oral argument,246 the
Supreme Court also issues orders on matters that typically receive less briefing and no argument.
These may include orders granting or denying petitions for writs of certiorari; ruling on
emergency matters, such as requests to stay lower court decisions pending appeal; and setting
deadlines and other procedures for litigation before the Court.247
Most decisions on the Court’s non-merits docket involve either grants or denials of certiorari or
routine procedural questions,248 but some of the Court’s non-merits orders in emergency matters
have a major impact on high-profile litigation. For example, emergency litigation before the
Supreme Court often concerns requests for preliminary injunctive relief.249 In theory, such relief
is designed to preserve the status quo while a case is pending and remains in effect only until the
courts can fully consider the merits of the case. However, emergency matters are often based on
imminent real-world events, and sometimes the federal courts are not able to consider the merits
in full before those deadlines pass. For instance, cases related to elections or the scheduled
execution of prisoners are often litigated on an emergency basis, and recent years have seen
emergency litigation on topics including immigration policies and the government response to the
239 See infra “Motions Practice: the “Shadow Docket”.’”
240 See infra “Limits on Jurisdiction.”
241 See infra “Voting Rules and Congressional Override.”
242 See id.
243 See infra “Judicial Ethics.”
244 See infra “Cameras in the Courtroom and Other Transparency Measures.”
245 See, e.g., Baude, supra note 29; see also William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U
J. L. & LIBERTY 1 (2015) [hereinafter Baude, The Shadow Docket].
246 The Supreme Court and Court observers often use the phrase merits decision to refer to any written opinion of the
Court following full briefing and argument, even if the case is ultimately decided on technical or procedural grounds.
See, e.g., James Romoser, Symposium: Shining a Light on the Shadow Docket, SCOTUSBLOG (Oct. 22, 2020),
https://www.scotusblog.com/2020/10/symposium-shining-a-light-on-the-shadow-docket/; see also Supreme Ct. of the
United States, Briefs on the Merits, https://www.supremecourt.gov/meritsbriefs/meritsbriefs.aspx (last visited Jan. 5,
2023).
247 See, e.g., The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Courts, Intellectual Prop., & the
Internet of the H. Comm. on the Judiciary, 117th Cong. 1–2 (2021) (statement of Loren L. AliKhan, Solicitor Gen.,
Dist. of Columbia) [hereinafter AliKhan Testimony].
248 See, e.g., Baude, The Shadow Docket, supra note 245, at 5; AliKhan Testimony, supra note 247, at 1.
249 A preliminary injunction is a court order that either requires an entity to take a certain action or forbids an entity
from taking a certain action while a case is litigated. For additional discussion of injunctive relief, see “Overview of
Injunctive Relief” section of CRS Report R46902, Nationwide Injunctions: Law, History, and Proposals for Reform, by
Joanna R. Lampe (2021).
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COVID-19 pandemic.250 In many of these cases, a decision to grant or deny a preliminary
injunction (or a stay of a preliminary injunction issued by a lower court) may be the last
meaningful ruling in the case.251
The Supreme Court's procedures in non-merits matters differ significantly from its procedures in
merits cases. In merits cases, the Court typically considers briefs and oral argument from the
parties.252 In addition, the Court often receives input from non-parties known as amici curiae,
who raise additional issues and arguments potentially relevant to the case.253 For non-merits
matters, the Court generally does not hear oral argument and receives limited input from nonparties.254 Briefs from the parties are generally shorter than merits briefs, may be prepared on a
tight timeline, and may be based on a limited factual record. In some cases, the Court does not
wait for full briefing before issuing an order.255
The Supreme Court’s decisions also generally take different forms in merits cases and in nonmerits matters. When issuing a merits decision, the Court usually publishes a written opinion that
explains the Court’s reasoning and notes which Justice authored the opinion and which Justices
joined it.256 Justices may also file separate opinions concurring or dissenting in full or in part.
Those separate opinions are also signed by their authors and any other Justices who joined
them.257 By contrast, the Court frequently decides non-merits matters using summary orders.258
While those orders sometimes include a brief explanation of the legal reasoning underlying the
decision, they often lack legal analysis.259 In addition, summary orders typically do not reveal
how the Justices voted.260
Commentators generally agree that, in recent years, the Court has issued an increased number of
orders on its non-merits docket that concern high-profile litigation relating to issues of public
interest.261 They offer several possible reasons for the change. Some point to the litigation
250 See CRS Legal Sidebar LSB10637, The “Shadow Docket”: The Supreme Court’s Non-Merits Orders, by Joanna R.
Lampe (2021).
251 See, e.g., AliKhan Testimony, supra note 247, at 3–7.
252 See, e.g., id. at 1.
253 Id.
254 See, e.g., id. at 10 (“Although ... stakeholders may do their best to file amicus briefs in emergency litigation ... , the
accelerated timelines and unpredictable scheduling of these cases make coordinating amicus efforts extremely
challenging. And ... the Court’s official guidance notes that ‘the filing of amicus briefs in connection with emergency
applications is strongly discouraged.’ ”) (brackets in original); see also The Supreme Court’s Shadow Docket: Hearing
Before the Subcomm. on Courts, Intellectual Prop., & the Internet of the H. Comm. on the Judiciary, 117th Cong. 2
(2021) (statement of Stephen I. Vladeck, Chair in Fed. Cts., Univ. of Tex. Sch. of Law) [hereinafter Vladeck
Testimony], https://docs.house.gov/meetings/JU/JU03/20210218/111204/HHRG-117-JU03-Wstate-VladeckS20210218-U1.pdf.
255 Vladeck Testimony, supra note 254, at 2.
256 Id. The Court sometimes issues unsigned per curiam opinions in merits cases, but such orders are more common on
the motions docket. See Josh Blackman, Invisible Majorities: Counting to Nine Votes in Per Curiam Cases,
SCOTUSBLOG (July 23, 2020), https://www.scotusblog.com/2020/07/invisible-majorities-counting-to-nine-votes-inper-curiam-cases/.
257 See Ruth Bader Ginsburg, Remarks on Writing Separately, 65 WASH. L. REV. 133, 138 (1990).
258 See, e.g., AliKhan Testimony, supra note 247, at 2.
259 See, e.g., id. at 7–8.
260 Id. at 7. As with merits decisions, Justices may concur in or dissent from non-merits decisions and may elect to file
separate statements explaining their positions. If some Justices write separately to note concurring or dissenting votes,
the public may be able to infer which Justices voted in favor of a particular order, but this often does not reveal how
each Justice voted.
261 See, e.g., id. at 1–2. Some observers have noted that this increase comes as the Court appears to be issuing fewer
merits decisions. See, e.g., Vladeck Testimony, supra note 254, at 16.
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strategy of parties, particularly the federal government.262 Some observers trace the increase in
high-profile non-merits rulings to changes in the Court itself, citing possible changes in how the
Justices apply the legal test for emergency relief.263 Others debate whether use of the non-merits
docket is driven in significant part by lower courts’ issuance of nationwide injunctions—court
orders that bar a party (often the federal government) from taking a certain action not only against
other parties to the litigation but also against anybody else.264 Regardless of its origin, the rise of
the “shadow docket” raises legal and policy issues that may be of interest to Congress as it
considers legislation that would affect Supreme Court practices and procedures.
Some commentators worry that the Court’s non-merits orders may create confusion, especially
given that there is some uncertainty about whether and how those decisions should be considered
precedential.265 Observers often look to the Court’s orders in an attempt to divine how the Court
might rule in similar cases.266 The disposition of high-profile matters through summary orders
may create challenges for lower courts, policymakers, and regulated parties as they seek to
determine the legal standards to apply, particularly when the orders do not include a substantive
majority opinion.267
Some commentators also take issue with the Court’s procedures for resolving important matters
through non-merits decisions.268 They note that because many “shadow docket” matters are
262 Vladeck Testimony, supra note 254, at 4 (“In contrast to the eight applications for emergency relief filed by the
Justice Department between January 2001 and January 2017, the Trump administration filed 41 applications for such
relief over four years.”); id. at 5 (noting that many of those applications were successful); see also Stephen I. Vladeck,
The Solicitor General and the Shadow Docket, 133 HARV. L. REV. 123 (2019) [hereinafter Vladeck, Solicitor General].
As of July 2022, one commentator estimated that the Biden Administration had sought emergency relief in six cases,
which would represent a decrease compared to the Trump Administration but an increase compared to earlier
administrations. @steve_vladeck, TWITTER (July 8, 2022, 3:12 PM),
https://twitter.com/steve_vladeck/status/1545486062579073036.
263 Vladeck Testimony, supra note 254, at 9–10; Vladeck, Solicitor General, supra note 262, at 126.
264 See The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Courts, Intellectual Prop., & the
Internet of the H. Comm. on the Judiciary, 117th Cong. 4–7 (2021) (statement of Michael T. Morley, Prof., Fla. State
Univ. Coll. of Law) [hereinafter Morley Testimony],
https://docs.house.gov/meetings/JU/JU03/20210218/111204/HHRG-117-JU03-Wstate-MorleyM-20210218-U1.pdf.
Nationwide injunctions have garnered considerable attention in recent years, and two members of the Court have
authored separate opinions disapproving of such orders, so it is possible that some of the Court’s non-merits decisions
seek to curb the practice. See Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas, J., concurring); Dep’t of
Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring). However, one scholar notes that
appeals involving nationwide injunctions comprise “only one modest slice of the shadow docket” and thus do not fully
explain the increase in high-profile non-merits decisions. Vladeck Testimony, supra note 254, at 8. For additional
discussion of nationwide injunctions, see generally Lampe, supra note 249.
265 Compare Vladeck Testimony, supra note 254, at 7, with Richard C. Chen, Summary Disposition as Precedent,
61 WM. & MARY L. REV. 691, 723 (2020), and Trevor McFadden & Vetan Kapoor, Symposium: The Precedential
Effects of Shadow Docket Stays, SCOTUSBLOG (Oct. 28, 2020), https://www.scotusblog.com/2020/10/symposium-theprecedential-effects-of-shadow-docket-stays/. However, at least one recent order of the Court suggests that these orders
carry precedential weight and should dictate the outcome of future litigation in the lower courts. See Gateway City
Church v. Newsom, 141 S. Ct. 1460 (2020) (mem.)
266 AliKhan Testimony, supra note 247, at 12–13.
267 Id.; see also Chen, supra note 265, at 701.
268 See generally, The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Courts, Intellectual Prop., &
the Internet of the H. Comm. on the Judiciary, 117th Cong. 3 (2021) (written statement of Amir H. Ali) [hereinafter Ali
Testimony], https://docs.house.gov/meetings/JU/JU03/20210218/111204/HHRG-117-JU03-Wstate-AliA-20210218U2.pdf (asserting that the Court “has at times taken extraordinary liberties with the ordinary litigation process.”); see
also Edward A. Hartnett, Summary Reversals in the Roberts Court, 38 CARDOZO L. REV. 591, 592 (2016) (noting that
the Supreme Court’s “summary decisions have long been criticized,” and providing examples); but cf. Baude, The
Shadow Docket, supra note 245, at 16 (“It may not be possible to have a fully prescribed set of procedures for orders.
(continued...)
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litigated on an emergency basis in the trial court as well as on appeal, the factual and legal records
may not be fully developed.269 Moreover, when these appeals arise from orders issued early in the
litigation process, the Court may unnecessarily reach issues that would have become moot or
otherwise dropped out of the litigation had it proceeded through more usual processes.270 And,
due to the expedited timeline of emergency litigation, some argue, the Court has less time to
consider the issues, reach a well-reasoned decision, and seek compromise when appropriate.271
The Court’s non-merits decisions may issue at inconsistent times (sometimes in the middle of the
night) and do not always indicate which Justices voted for or against the disposition.272 These
procedures, some contend, interfere with the Court’s important function of establishing uniform
national law for lower courts to follow and may reduce accountability for the Justices.273
Moreover, the lack of published legal reasoning from the majority in many non-merits cases may
“make[ ] it impossible to scrutinize the merits of the Court’s action”274 or to determine whether
the Court as a whole remains consistent across cases.275
These procedural concerns may, in turn, give rise to broader concerns about judicial legitimacy.276
Some commentators note that it may undermine public confidence in the judiciary when the
Supreme Court sets aside a lengthy and carefully reasoned district court decision through a brief
summary order.277 Moreover, some contend that the rise of the “shadow docket” may exacerbate
concerns about the Court’s alleged politicization.278 Some Supreme Court Justices have raised
The orders sometimes respond to unexpected or unusual developments in a given case, and the nature of the
unexpected is that it is hard to prepare for it in advance.”).
269 AliKhan Testimony, supra note 247, at 9. See also Chen, supra note 265, at 703–04 (noting, in the context of
summary dispositions, that “when the Supreme Court reverses on the basis of the certiorari papers alone, it does so
without the benefit of the full adversarial process”).
270 Vladeck Testimony, supra note 254, at 14–16; AliKhan Testimony, supra note 247, at 9.
271 AliKhan Testimony, supra note 247, at 10–11 (stating that Justice Breyer had “requested that the Court take no
action until tomorrow, when the matter could be discussed at Conference,” but the “Court nevertheless grant[ed] the
State’s application to vacate the stay”—a ruling handed down “in the middle of the night without giving all Members
of the Court the opportunity for discussion”) (citing Dunn v. Price, 139 S. Ct. 1312, 1314–15 (2019) (mem.) (Breyer, J.,
dissenting)).
272 Id. at 3 (“Presently, the Supreme Court’s final word on whether the defendant will be executed, or whether his
claims will receive full consideration, is often delivered in the middle of the night, while the public is asleep.”); see
also Vladeck Testimony, supra note 254, at 13–14.
273 AliKhan Testimony, supra note 247, at 11 (noting that “just last week, a ‘mystery’ Justice joined Justices Barrett,
Breyer, Kagan, and Sotomayor to halt an execution” and asserting that “anonymous voting in a divisive case is
troubling” because it fails to promote accountability and consistency); see also Baude, The Shadow Docket, supra note
245, at 17 (“The orders list suggests that when individual personalities, and therefore individual reputations, are taken
out of the Court's practice, the results might not always be as thoughtful.”).
274 Vladeck Testimony, supra note 254, at 13.
275 See, e.g., Ian Millhiser, The Supreme Court’s Enigmatic “Shadow Docket,” Explained, VOX (Aug. 11, 2020),
https://www.vox.com/2020/8/11/21356913/supreme-court-shadow-docket-jail-asylum-covid-immigrants-soniasotomayor-barnes-ahlman (“The ordinary requirement that judges explain their decisions in reasoned opinions can be a
tremendous check on judicial power. It discourages those judges from ruling in arbitrary ways.”).
276 See, e.g., Baude, The Shadow Docket, supra note 245, at 10–11 (“Procedural regularity begets substantive
legitimacy.... But the orders process, by contrast, is sometimes ad hoc or unexplained.”); Zachary B. Wolf, The
Supreme Court is Fighting over its Own Legitimacy, CNN (Sept. 29, 2022),
https://www.cnn.com/2022/09/29/politics/supreme-court-legitimacy-what-matters/index.html.
277 Ali Testimony, supra note 268, at 3 (noting that when this occurs in the context of death penalty litigation “it means
that a person may be executed even though the only reasoned judicial decision on the books tells us there was a serious
likelihood the execution violates the laws of our country”) (emphasis omitted).
278 See, e.g., Chen, supra note 265, at 711–12.
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these concerns,279 although other Justices have defended non-merits orders as an ordinary part of
the Court’s decisionmaking process.280
Scholars and legislators have advanced numerous recent proposals that could address the
Supreme Court’s issuance of consequential decisions through summary orders. One key question
about such proposals is which branch of government should implement any reforms. Some
commentators assert that, out of deference to the judicial branch and to avoid any possible
constitutional issues related to the separation of powers, it would be most appropriate for
Congress to allow the Court itself to address these issues.281 To the extent the rise of the “shadow
docket” stems from the federal government’s litigation strategy, the executive branch could also
play a role in reform.282
However, many commentators agree that Congress also has authority to act in this area.283
Judicial procedures are generally based on statutes or court-created rules rather than constitutional
mandates, and Congress can alter those procedures through legislation.284 For example, if
Congress concluded that the rise of the “shadow docket” stems in significant part from the
proliferation of nationwide injunctions in the lower federal courts, it could enact legislation
intended to limit such injunctions.285 Congress could also allow the federal government to transfer
cases seeking nationwide injunctions to a particular district court to mitigate forum-shopping
concerns or speed up the appeals process for cases involving injunctions against government
action to “tak[e] pressure off of the shadow docket.”286 Congress might consider reforms targeting
other specific topics, such as enacting procedures for death penalty litigation that might forestall
279 Miller v. Mulligan, 142 S. Ct. 879, 883–89 (Mem) (2022) (Kagan, J., dissenting). In another dissent, Justice Kagan,
joined by Chief Justice Roberts, Justice Breyer, and Justice Sotomayor, objected that the majority “provides a stay
pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable
harm showing we have traditionally required. That renders the Court’s emergency docket not for emergencies at all.
The docket becomes only another place for merits determinations—except made without full briefing and argument.”
Louisiana v. Am. Rivers, 142 S. Ct. 1347, 1349 (Mem) (2022) (Kagan, J., dissenting). See also Whole Woman’s Health
v. Jackson, 141 S. Ct. 2494 (2021) (Kagan, J., dissenting); Barr v. E. Bay Sanctuary Covenant, 140 S. Ct. 3 (Mem)
(2019) (Sotomayor, J., dissenting). Cf. Dr. A. v. Hochul, 142 S. Ct. 2569 (Mem) (2022) (Thomas, J., dissenting).
280 Miller, 142 S. Ct. at 879 (Kavanaugh, J., concurring); Adam Liptak, Alito Responds to Critics of the Supreme
Court’s ‘Shadow Docket’, N.Y. TIMES (Sept. 30, 2021), https://www.nytimes.com/2021/09/30/us/politics/alito-shadowdocket-scotus.html.
281 Vladeck Testimony, supra note 254, at 17 (“Just as the rise of the shadow docket has largely been the result of
judge-made shifts in judge-made norms and procedures, the first place where reforms to address these concerns should
be pursued is at the Supreme Court itself.”). See also Will Baude, Death and the Shadow Docket, THE VOLOKH
CONSPIRACY (Apr. 12, 2019), https://reason.com/volokh/2019/04/12/death-and-the-shadow-docket/; Chen, supra note
265, at 719, 736–53.
282 See, e.g., Shoba Wadhia, Symposium: From the Travel Ban to the Border Wall, Restrictive Immigration Policies
Thrive on the Shadow Docket, SCOTUSBLOG (Oct. 27, 2020), https://www.scotusblog.com/2020/10/symposium-fromthe-travel-ban-to-the-border-wall-restrictive-immigration-policies-thrive-on-the-shadow-docket/ (“It is my hope that a
new administration will minimize its use of the shadow docket and return immigration policymaking to the realm of
legislation, notice-and-comment rulemaking and regular court process.”).
283 AliKhan Testimony, supra note 247, at 13–14 (arguing that Congress has the constitutional authority to alter the
Supreme Court’s appellate jurisdiction or change court procedures for granting injunctions or stays); Vladeck
Testimony, supra note 254, at 19 (supporting “encouraging” the Court to provide explanation for orders that alter the
status quo or to hold oral argument on such matters).
284 See Lampe, supra note 21.
285 See, e.g., Injunctive Authority Clarification Act of 2023, H.R. 89, 118th Cong. (2023); Court Shopping Deterrence
Act, H.R. 893, 117th Cong. (2021); Nationwide Injunction Abuse Prevention Act of 2019, H.R. 4292, S. 2464, 116th
Cong. (2019); see also Morley Testimony, supra note 264, at 7.
286 Vladeck Testimony, supra note 254, at 18 (emphasis omitted).
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some emergency litigation or establishing standards for the Court to apply in those cases.287 More
generally, commentators have suggested that Congress could codify the legal test for emergency
relief288 or enact legislation imposing more stringent standards for when the Supreme Court may
overrule a lower court.289
Limits on Jurisdiction
Some Court reform proposals would limit the jurisdiction of the Supreme Court, or of courts
generally, over certain categories of cases, a practice sometimes called jurisdiction stripping.290
Often, such proposals aim to prevent courts from invalidating actions of state governments or the
federal government’s political branches.291 Jurisdiction-stripping proposals have a long history.
Some jurisdiction-stripping measures have been enacted and evaluated by courts,292 while others
raise novel legal considerations. Proposals vary in scope: Some would limit the jurisdiction of the
Supreme Court only,293 some would curb the jurisdiction of all federal courts but not state
courts,294 and some would limit the jurisdiction of both federal and state courts.295 Current law
and practice make clear that Congress has some authority to enact legislation limiting jurisdiction
over certain types of cases but do not precisely define the scope of that power.
Beginning with Supreme Court jurisdiction, the Constitution authorizes the federal courts to hear
certain enumerated types of “Cases” and “Controversies.”296 Article III, Section 2, clause 2,
provides that the Supreme Court shall have original jurisdiction over a subset of those matters:
“Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State
287 Id. (suggesting giving the Supreme Court “mandatory appellate jurisdiction at least over direct appeals” and
“mak[ing] it easier for death-row prisoners to bring timely method-of-execution challenges before an execution date
has been set”).
288 Id.
289 See Ali Testimony, supra note 268, at 5 (in the context of death penalty litigation, calling for “clear guidance on the
standard that must be applied to overrule the decisions of a lower court that has granted a stay for further consideration
of an execution issue” and advocating a deferential standard of review such as the standard for review of certain state
court decisions under 28 U.S.C. § 2254(d)).
290 This section focuses on proposals that would limit the jurisdiction of the Supreme Court. For additional discussion
of jurisdiction-stripping measures that apply primarily to the lower federal courts, see CRS Report R44967, Congress’s
Power over Courts: Jurisdiction Stripping and the Rule of Klein, coordinated by Kevin M. Lewis (2018).
291 See, e.g., SCOTUS Commission Report, supra note 28, at 159 (citing examples and stating, “The goals of
[jurisdiction-stripping] proposals are overwhelmingly substantive in nature—to protect the particular laws in question
from judicial invalidation.”).
292 See, e.g., Lauf v. E.G. Shinner & Co., 303 U.S. 323, 329 (1938) (upholding statute depriving federal courts of
jurisdiction to issue injunctions “in any case involving or growing out of a labor dispute”).
293 Proposals targeting only the Supreme Court would often deprive the Court of appellate jurisdiction to review state
court decisions. For discussion of historical examples, see Leonard G. Ratner, Congressional Power Over the Appellate
Jurisdiction of the Supreme Court, 109 U. PA. L. REV. 157, 159–61 (1960). A more recent proposal would seek to
“prevent the Supreme Court from reviewing the constitutionality or legality” of the Women’s Health Protection Act.
See Kenny Stancil, House Progressives Cite Clarence Thomas to Argue SCOTUS Should Lose Jurisdiction Over
Abortion, COMMON DREAMS (July 15, 2022), https://www.commondreams.org/news/2022/07/15/house-progressivescite-clarence-thomas-argue-scotus-should-lose-jurisdiction-over.
294 For discussion of such legislation through the 109th Congress, see Travis Christopher Barham, Note, Congress
Gave and Congress Hath Taken Away: Jurisdiction Withdrawal and the Constitution, 62 WASH. & LEE L. REV. 1139,
1143–47 (2005).
295 E.g., Portal-to-Portal Act of 1947, Pub. L. No. 80-49, ch. 52, § 2(d), 61 Stat. 84, 86 (codified in relevant part at 29
U.S.C. § 252(d)).
296 U.S. CONST. art. III, § 2, cl. 1. Like all federal courts, the Supreme Court cannot hear matters that fall outside the
scope of federal court jurisdiction. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
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shall be Party.”297 This constitutional grant of original jurisdiction means that those cases may
commence in the Supreme Court rather than reaching the Court on appeal from another court, if
at all.298 The Supreme Court has held that its original jurisdiction flows directly from the
Constitution and is therefore self-executing without further action by Congress.299 Congress
cannot expand or restrict the Supreme Court’s original jurisdiction except through a constitutional
amendment.300
With respect to all other cases subject to federal court jurisdiction, Article III, Section 2, clause 2,
grants the Supreme Court appellate jurisdiction “with such Exceptions, and under such
Regulations as the Congress shall make.”301 Known as the “Exceptions Clause,” that provision
allows the Court to review both decisions of the inferior federal courts and final judgments of
state courts if such cases fall within both the constitutional grant of federal court jurisdiction and
an authorizing statute.302 The Supreme Court has generally indicated that the constitutional grant
of appellate jurisdiction is not self-executing, meaning that Congress must enact legislation to
empower the Court to hear cases on appeal. Congress has exercised its power to implement the
provision by granting the Supreme Court appellate jurisdiction over a subset of the cases included
in the constitutional grant.303
In contrast to Congress’s limited power to modify the Supreme Court’s original jurisdiction,
Congress and the Court have construed the Exceptions Clause to provide Congress significant
control over the Court’s appellate jurisdiction.304 Congress has used its power to regulate
Supreme Court jurisdiction to forestall a possible adverse decision from the Court,305 and the
Supreme Court has upheld multiple legislative limits on its jurisdiction.306
While the Exceptions Clause grants Congress significant power over the Supreme Court’s
appellate jurisdiction, some legislation limiting that jurisdiction might raise constitutional
questions. In particular, any proposal that would allow certain cases to proceed through the lower
federal courts or state courts but prohibit the Supreme Court from reviewing those courts’
decisions might violate the Article III text creating one “supreme Court.”307 The Supreme Court
arguably would not be meaningfully “supreme” if it were unable to correct other courts’ errors in
297 U.S. CONST. art. III, § 2, cl. 2.
298 See generally Cong. Research Serv., Supreme Court Original Jurisdiction, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C2-2/ALDE_00001220/ (last visited Jan. 5, 2023).
299 E.g., Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861).
300 Cf. Marbury, 5 U.S. (1 Cranch) 137 (invalidating a statutory provision that gave the Court power to issue a writ of
mandamus in an original proceeding, which the Constitution did not authorize).
301 U.S. CONST. art. III, § 2, cl. 2.
302 See generally Cong. Research Serv., Exceptions Clause and Congressional Control Over Appellate Jurisdiction,
CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C2-6/ALDE_00013618/ (last
visited Jan. 5, 2023).
303 See, e.g., Judiciary Act of 1789, ch. 20, 1 Stat. 73, 80.
304 See generally Cong. Research Serv., Exceptions Clause and Congressional Control Over Appellate Jurisdiction,
CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C2-6/ALDE_00013618/ (last
visited Jan. 5, 2023).
305 Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869).
306 See Francis Wright, 105 U.S. (15 Otto) 381, 385–86 (1882); Luckenbuch S.S. Co. v. United States, 272 U.S. 533,
537 (1926); Am. Constr. Co. v. Jacksonville, T. & K. W. Ry., 148 U.S. 372, 378 (1893); United States v. Bitty, 208
U.S. 393 (1908); United States v. Young, 94 U.S. (4 Otto) 258 (1876); Insurance Co. v. Ritchie, 72 U.S. (5 Wall.) 541
(1866); Railroad Co. v. Grant, 98 U.S. (8 Otto) 398 (1878); Bruner v. United States, 343 U.S. 112 (1952); Dist. of
Columbia v. Eslin, 183 U.S. 62 (1901); Patchak v. Zinke, 138 S. Ct. 897 (2018).
307 U.S. CONST. art. III, § 1.
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the application of the Constitution or federal law.308 A lack of Supreme Court review could also
lead to non-uniform application of the Constitution or federal law if multiple federal or state
courts interpreted the law differently and the Supreme Court was unable to resolve the resulting
conflicts.309
Congress also has some power to prevent Supreme Court appellate review by generally limiting
the federal courts’ jurisdiction over certain classes of cases or even specific cases.310 The
Constitution grants Congress expansive authority to structure the lower federal courts and
regulate their jurisdiction and procedures.311 Separation-of-powers considerations bar Congress
from requiring courts to reopen final judicial decisions312 or dictating the substantive outcome in
pending litigation.313 However, Congress has never granted the federal courts jurisdiction over all
“Cases or Controversies” within the meaning of the Constitution and has at times enacted
legislation limiting federal court jurisdiction over particular cases or classes of cases. The
Supreme Court has upheld legislation that deprives the federal courts of jurisdiction over certain
matters, including legislation that removed jurisdiction over a specific pending case.314
Congress might seek to strip jurisdiction from the lower federal courts to prevent certain cases
from reaching the Supreme Court on appeal. However, some litigants might be able to obtain
Supreme Court review through other procedures. First, if any affected cases fell within the
Supreme Court’s original jurisdiction, litigants could file them directly in the Supreme Court. As
noted above, Congress cannot limit the Court’s original jurisdiction through ordinary
legislation.315 Second, state courts have concurrent jurisdiction to hear many cases that federal
courts can hear.316 If state courts retained jurisdiction over cases excluded from federal court,
those cases could proceed in state court and potentially reach the Supreme Court on appeal.
Specific withdrawals of federal court jurisdiction might raise constitutional issues on a case-bycase basis. For instance, the Supreme Court has held that the Constitution limits Congress’s
ability to restrict federal court jurisdiction over petitions for writs of habeas corpus.317 At times,
the Supreme Court has construed jurisdiction-stripping statutes narrowly to avoid possible
308 See, e.g., Henry M. Hart Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in
Dialectic, 66 HARV. L. REV. 1362, 1365 (1953); James E. Pfander, Jurisdiction-Stripping and the Supreme Court’s
Power to Supervise Inferior Tribunals, 78 TEX. L. REV. 1433, 1435 (2000).
309 See Sup. Ct. R. 10 (listing circuit splits as one factor in the decision whether to grant certiorari).
310 See generally Lewis, supra note 290.
311 The Constitution provides for the existence of a Supreme Court but leaves to Congress the decision whether to
establish inferior federal courts. That broad grant of discretion has been interpreted to also give Congress almost
plenary authority to regulate the lower federal courts if it elects to establish them. See Cong. Research Serv.,
Establishment of Inferior Federal Courts, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S1-8-4/ALDE_00013560/ (last visited Jan. 5, 2023).
312 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).
313 United States v. Klein, 80 U.S. (13 Wall.) 128 (1871); see also Bank Markazi v. Peterson, 578 U.S. 212, 231 (2016)
(Congress may not enact legislation “that directs, in ‘Smith v. Jones,’ ‘Smith wins.’”).
314 Patchak v. Zinke, 137 S. Ct. 2091 (2017) (mem.).
315 See Cong. Research Serv., Supreme Court Original Jurisdiction, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C2-2/ALDE_00001220/ (last visited Jan. 5, 2023). The
Supreme Court’s original jurisdiction is not exclusive, meaning that litigants can (and often do) elect to file cases
subject to original jurisdiction in the lower courts in the first instance. Limiting the lower courts’ jurisdiction over such
cases might increase the number of cases invoking the Court’s original jurisdiction and burden the Court.
316 See Cong. Research Serv., State Court Jurisdiction to Enforce Federal Law, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S1-6-4/ALDE_00013232/ (last visited Jan. 5, 2023).
317 See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008).
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constitutional problems.318 That practice may reduce the risk that the Court would strike down
future jurisdiction-stripping legislation but may also limit the practical effect of such legislation.
With respect to state courts, the Constitution does not expressly provide Congress the power to
regulate their jurisdiction. Any such power comes from the Necessary and Proper Clause and the
Supremacy Clause.319 Congress has often enacted legislation restricting state courts’ jurisdiction
over certain federal law issues, giving the federal courts exclusive jurisdiction over such
matters.320 While that practice is broadly accepted, legislation that would strip jurisdiction from
both state and federal courts might raise constitutional issues. In particular, if a proposal would
foreclose any judicial avenue to vindicate one or more constitutional rights, it might violate the
Due Process Clause.321 One commentator also argues that Congress would exceed its enumerated
powers if it sought to strip state courts of jurisdiction to hear federal constitutional challenges to
state laws.322
Beyond the foregoing legal considerations, commentators also debate whether jurisdictionstripping proposals would promote or undermine policy goals such as increasing democratic
accountability, promoting bipartisanship and political stability, protecting constitutional rights,
and ensuring the uniform application of federal law.323 Given the significant variation among
proposals, the legal and practical implications of each proposal are best assessed on a case-bycase basis.
Jurisdiction stripping is not the only means through which Congress might seek to prevent the
Supreme Court from invalidating government action. In addition to methods discussed in the
following section,324 the political branches may be able to forestall specific legal challenges by
amending a challenged law or otherwise changing policy while a case is pending.325 On occasion,
Congress has even changed the Supreme Court’s term in an attempt to prevent it from considering
a constitutional challenge.326
318 Felker v. Turpin, 518 U.S. 651 (1996) (holding that Antiterrorism and Effective Death Penalty Act barred Supreme
Court appellate review of certain habeas cases but did not prevent the Court from considering original habeas
petitions); see also Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869).
319 U.S. CONST. art. I, § 8, cl. 18; id. art. VI, cl. 2.
320 See, e.g., 18 U.S.C. § 3231 (granting the federal district courts original jurisdiction, exclusive of the courts of the
States, over federal criminal proceedings); 28 U.S.C. § 1334 (granting district courts jurisdiction over bankruptcy
cases); id. § 1337 (granting district courts jurisdiction over antitrust cases).
321 See Michael C. Dorf, Congressional Power to Strip State Courts of Jurisdiction, 97 TEX. L. REV. 1, 3–4 (2018); see
also Battaglia v. Gen. Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948) (“While Congress has the undoubted power to
give, withhold, and restrict the jurisdiction of courts other than the Supreme Court, it must not so exercise that power as
to deprive any person of life, liberty, or property without due process of law or to take private property without just
compensation.”) (footnote omitted); cf. Laurence H. Tribe, Jurisdictional Gerrymandering: Zoning Disfavored Rights
Out of the Federal Courts, 16 Harv. C.R.-C.L. L. Rev. 129, 141–46 (1981).
322 Dorf, supra note 321, at 4.
323
See SCOTUS Commission Report, supra note 28, at 159–62.
324 See infra “Voting Rules and Congressional Override.”
325 As one example, in September 2022, the Biden Administration clarified its student loan forgiveness plan in response
to litigation, leading a federal judge to deny a motion to enjoin the policy. See Zach Schonfeld, Judge Denies Student
Debt Cancellation Lawsuit after Education Department Clarifies Plan, HILL (Sept. 29, 2022),
https://thehill.com/regulation/court-battles/3668006-judge-denies-student-debt-cancellation-lawsuit-after-educationdepartment-clarifies-plan/. Other challenges to the plan have proceeded. See CRS Legal Sidebar LSB10876, Student
Loan Cancellation Reaches the Supreme Court, by Edward C. Liu and Sean M. Stiff (2022).
326 Congress enacted legislation to change the Court’s term to forestall a constitutional attack on the repeal of the
Judiciary Act of 1801, with the result that the Court did not convene for 14 months. 1 CHARLES WARREN, THE SUPREME
COURT IN UNITED STATES HISTORY 222–224 (rev. ed. 1926).
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Voting Rules and Congressional Override
Some Supreme Court reform proposals would seek to shift the existing balance of power between
the judicial and legislative branches by making it more difficult for the Court to declare a law
unconstitutional or allowing Congress or some other entity to override Supreme Court decisions.
Legislators and others have proposed such reforms at various times in the nation’s history, but
Congress has never enacted them.
One main way that reform proposals seek to make it more difficult for the Court to declare a law
unconstitutional is by imposing voting rules, such as requiring the agreement of a supermajority
of the Justices before a law can be held unconstitutional. For all of its history, the Supreme Court
has decided cases by a simple majority vote. With the current nine-member panel, this means that
the Court can strike down a statute or other government action if at least five Justices believe the
law is unconstitutional.327 Legislators have proposed supermajority voting requirements many
times in the past two centuries.328 In recent years, some legal commentators have advocated for
supermajority voting rules—for instance, requiring the votes of six of the nine Justices to strike
down government action.329
Other propos
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