by Jodi L. Miller
Amid calls for U.S. Supreme Court reform, then President Joseph Biden issued an executive order in April 2021 that formed the Presidential Commission on the Supreme Court of the United States. The commission, comprised of experts on the Court and the Court reform debate, was not established to make recommendations to the President, but to provide “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.” In December 2021, the commission submitted its final report to the President.
Packing the Court
Throughout history, when the legitimacy of the Court has come into question, several remedies have been proposed. One such remedy, considered by President Franklin Roosevelt, was court packing. Membership on the U.S. Supreme Court has fluctuated over the years. It has been as low as five justices and as high as 10. Since 1869, the number has been steady at nine justices.
In 1937, President Roosevelt, frustrated at the U.S. Supreme Court for invalidating parts of his New Deal legislation, devised a “court-packing” plan after a two-year study by the Department of Justice (DOJ) that considered several Court reform plans. Because the U.S. Constitution does not specify how many justices should be on the Court, the DOJ advised that “the proposal to enlarge the Supreme Court, while not without flaw, was the only one which is certainly constitutional and…may be done quickly and with a fair assurance of success.” President Roosevelt’s plan involved him appointing one additional justice for each justice over age 70, unless they retired within six months. This potentially could have expanded the Court to 15 members.
In one of his famous fireside chats, President Roosevelt appealed to the American people, saying that “new blood” was needed on the Court because it was “acting not as a judicial body, but as a policy-making body.” Even though President Roosevelt’s party controlled 70% of Congress at the time, many thought of the move as an attempt to grab more power for the Presidency. By July 1937, the plan had been defeated.
In the 1950s, an amendment to the U.S. Constitution, which would permanently fix the number of U.S. Supreme Court justices at nine, was proposed. The measure passed in the U.S. Senate but failed in the U.S. House of Representatives. Attempts to keep the number of justices at nine were also proposed more recently in 2019 by then Senator Marco Rubio, and in 2022 by Representative Dusty Johnson. Both of those efforts failed as well.
Report issued
Court packing has been mentioned in the current debate over Court reform, as well, arguing that it would allow for more diversity on the Court. Out of all the justices appointed to the U.S. Supreme Court—approximately 130 so far—only eight have been either a woman or a person of color.
The commission’s report to President Biden states: “Critics of court expansion worry that such efforts would pose considerable risk to our constitutional system, including by spurring parties able to take control of the White House and Congress at the same time to routinely add justices to bring the Court more into line with their ideological stances or partisan political aims.”
In the past, other plans for altering the composition of the Court, according to the commission’s report, included rotating the Court’s membership, which “would structure the Supreme Court as a shifting or rotating set of nine (or more) justices from among a larger set of Article III judges.” The details of how rotation would work vary, but essentially the justices would rotate between service on the U.S. Supreme Court, as well as on lower federal courts.
Another plan mentioned in the report outlines a plan to have the justices sit on panels to hear cases, similar to circuit courts that have three-judge panels. These subsets could be charged with hearing certain types of cases. “For instance, one subset of justices might be entrusted to decide questions of original jurisdiction, another subset of justices might be empowered to hear appeals,” the report states. Both the rotating plan and the three-judge panel scheme are thought to violate the “one Supreme Court” directive from Article III, Section I of the U.S. Constitution.
Imposing term limits on U.S. Supreme Court Justices is another popular solution for Supreme Court reform. However, the wording “shall hold their Offices during good Behavior” in Article III of the U.S. Constitution has been interpreted to mean that justices on the Court—and lower federal court judges for that matter—have lifetime appointments. In other words, unless the justice wants to retire, they cannot be made to do so and many have stayed on the bench until their death. According to the commission’s report, “The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term of years for its high court justices.”
An Associated Press-NORC Center for Public Affairs Research poll revealed that 67% of Americans support term limits or a mandatory retirement age for U.S. Supreme Court Justices. Several suggestions for term limits have been proposed; most, including legislation proposed by U.S. Senator Cory Booker of New Jersey, would cap terms at 18 years. In 1954, the U.S. Senate proposed a constitutional amendment that would have mandated a retirement age of 75 for all federal judges, including U.S. Supreme Court Justices. The effort failed. The commission’s report to the President points out that in order to consider either term limits or a minimum retirement age, the U.S. Constitution would need to be amended.
Discussion Questions
- What do you think of lifetime appointments for U.S. Supreme Court Justices? What are the benefits? What are the drawbacks?
- Several measures for reforming the U.S. Supreme Court are discussed in the article, including court packing, instituting term limits, mandatory retirement age, or rotating Court membership. Select one of these proposals and explain why you think it would be the best course of action.
Glossary Words
appeal — a complaint to a higher court regarding the decision of a lower court.
ideological—based on or related to a system of ideas, especially one which forms the basis of economic or political theory.
partisan — someone who supports a party or cause with great devotion.
This article originally appeared in Constitutionally Speaking—The U.S. Supreme Court