Here’s a question that comes up due to an article in Raw Story that summarizes an article in The Daily Beast.
It says that the number nine (of SCOTUS justices) in neither in the Constitution nor in the law. What does that mean? There is no law ever passed by Congress specifying how many justices there should be?
So, the article suggests, if Biden wants to add additional justices, all he needs to do is nominate one or several, and if the Senate confirms, then the court is expanded. That’s all there is to it? No legislation needs to be passed be Congress to this effect?
The current number of justices was set by The Judiciary Act of 1869. The number of justices can be changed by passing a new Act. There have previously been other numbers than nine justices on the court, greater and less, so it’s not unheard of to add or remove from the number of justices.
Here’s another, separate, question based on something I saw in some other article today: I saw somewhere that confirmed judges (including SCOTUS justices?), although assured of a lifetime tenure, are not assured of a lifetime tenure in any particular seat.
(I don’t have the cite handy, and I don’t think you need it, because the above remark is the entirety of what the article said about that. No additional detail or clarification given.)
But the implication seemed to be that a judge (or SCOTUS justice?) could be moved around from one seat to another (even from one court to another?) Again, no further details given on what the mechanism might be for doing that.
Aha, squeegee, so you’re saying that the number of justices IS specified in a law passed by Congress (contrary to what that article claims), and that enlarging the court would require a new act of Congress to enable it.
Congress could mandate 192 Judges for the SC. It could also drastically reduce the capacity for confirmation hearings by making a rule that for instance if the Senate hasn’t acted on a nomination with 3 days it is deemed to be a confirmation.
No where in the Constitution does it say that the three branches are “separate but equal”. In the debates around adopting the Constitution, the Founders assumed that Congress would be the preeminent organ of Government, with the Presidency in second and the judiciary a distant third. What they did adhere to was a “separation of powers” doctrine that each branch should have clearly defined authorities and responsibilities.
And as part of that, they deliberately gave each branch specific authorities to confront or override the actions of another – i.e. the “checks and balances” you heard about in grade school. Congress got the “power of the purse” to fund or not fund the other branches. But even that’s constrained – e.g. judges’ salaries may not be decreased during their time in office. So Congress could, for example, refuse to pay to keep the lights on at the Supreme Court Building, but they could not keep the Justices from meeting at the Olive Garden to hear cases.
The entire structure of the federal judiciary – i.e. district courts and appellate courts – was created through legislation. Constitutionally, there must be a Supreme Court, but the number and structure of inferior courts is explicitly left up to the legislative process.
Well…sure. I’d be curious about the process as well. My guess is that the only way to remove a sitting member of SCOTUS would be via impeachment, and that seems unlikely.
Instead of arguing about this, you might wish to read what the constitution actually says:
“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.”
That’s all it says. The numbers are left to congress and can be changed at any time. But no expansion (or contraction) can take place without an act of congress.
Nor can a judge be dismissed except for bad behaviour, presumably through impeachment. Nice to use facts when arguing.
