'Packing' the Supreme Court - Regulation Alert
On April 9, 2021, President Biden issued Executive Order 14023 forming the Presidential Commission on the Supreme Court of the United States.
The Commission’s purpose is to provide an 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. The topics it will examine include:
- The genesis of the reform debate
- The Court’s role in the Constitutional system
- The length of service and turnover of justices on the Court
- The membership and size of the Court
- The Court’s case selection, rules, and practices
The Commission encourages broad public participation through the public comment process. Written public comments will be accepted throughout the duration of the Commission.
Submission of Public Comments:
Written or electronic comments must be submitted by December 15, 2021.
Online: The electronic Federal Docket Management System will accept comments prior to midnight eastern standard time at the end of that day. Comment Now
Docket ID PCSCOTUS-2021-0001-0003, please include the Docket ID at the top of your comments.
Further Reading
Does the Constitution specify the number of justices on the Supreme Court? Have there been a different number of justices in the past?
The Constitution is silent about the number of justices on the Supreme Court. Article III, section 1 provides simply that "[t]he 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."
There is nothing sacrosanct about nine justices. Historically, the number of justices has varied between five and ten. The last change to the Court's size occurred following the Civil War, when Congress reduced the size of the Court to prevent President Andrew Johnson – an apologist for Southern segregationists –from appointing justices to the Court.
Term limits for justices
The Constitution vests justices with lifetime tenure, but some court watchers have called for setting term limits of 10 to 22 years.
The 16-member committee of Supreme Court litigators unanimously opposed proposals to set term limits by statute, warning it would face constitutional challenges and lead to instability, as future Congresses could alter the number of years justices can serve.
John Malcolm, a legal scholar at the Heritage Foundation, a conservative think tank, told the Supreme Court commission that imposing term limits would likely require a constitutional amendment.
Still, some scholars believe 18-year terms would help de-politicize the court. Even Justice Stephen Breyer, who has resisted calls to retire, has said he favors term limits."
There are only a handful of officials anywhere in the world with true lifetime tenure: the Pope, the Dalai Lama, 28 monarchs, and 9 justices of the Supreme Court. And while some of those other officials exercise only symbolic power, the Supreme Court justices in our country have very real power," Tom Ginsburg, a law professor at the University of Chicago, told the commission.
In Opposition
Senator Roy Blunt (R-MO) "The Democrats’ plan would be the first change in the number of justices on the court since 1869 – and easily the largest ever....A ruling party packing a nation’s highest court is a rare national embarrassment even in less developed countries. If Democrats manage to pack the Supreme Court, our country would join the august ranks of Venezuela in 2004 and Argentina in 1989. That any Democrats are seriously considering a plan to pack the courts is a sad development for the United States...In addition to undermining judicial independence, the Democratic court-packing scheme lacks any impartial justification. As Justice Ginsburg said, 'Nine seems to be a good number.' Every state’s highest court has between five and nine justices. Similar courts in other countries like Canada, Germany, and France have nine justices. The more justices on a high court, the more likely the court is to be a pawn of the ruling party."
