I’ve been poking around the USSC website looking for historical info on the membership of the court.
Of course we’ve been hearing about the Dem’s threat of packing the court, thanks to McConnell’s refusal to follow the McConnell Rule. But I’ve been wondering about the reverse, which I’ll call “unpacking” the court. If Congress decides to set the number of justices back to six, as it was in the late 1700s, how would it be decided which three justices has to clean out their desk? Seniority?
This is way, way out of my realm of knowledge, but I’d think the easiest/fairest way would be to change the number to 6 and wait until three of them die/retire/resign or otherwise leave through current processes. When it’s down to six, we could continue the way we do now, appointing a new one each time one leaves.
The issue, of course, being that most of them aren’t all that old. There’s two in their 80’s and two in their 70’s, so we’d probably be looking at 10-20 years for this to naturally happen.
The other option might be to wait until we have a Democratically controlled House and Senate (assuming you’re aiming for a court that’s closer to 3-3 instead of 6-0) and find ways to impeach (and convict) a few of them. No idea if that’s feasible though.
Attrition would be the only option since the Constitution specifically says justices hold their positions as long as they maintain good behavior.
The number of seats on the court is set by statute, and the size has both grown and diminished over time. In 1801, an act was passed to reduce the court from six to five seats by not replacing the next vacancy. But the act was superseded by another one before that vacancy occurred. Then in 1866 another act was passed to reduce the size of the court from ten to seven seats by the same attrition mechanism. The actual number of seats was reduced from ten to eight before this act too was superseded.
It seems pretty clear to me that the text of the constitution prohibits simply dismissing Supreme Court justices to reduce the size of the court: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” However, I have recently somewhere read of a theory–which I don’t think holds water–that they could be deprived of their vote on the court by statute while being allowed to keep their title and salary.
I think the Democrats are being silent on the court size issue to not alarm and motivate Republicans. There’s always the option (should they get full control) to do a proper investigation of Kavanaugh, what he said to congress, who paid off his debts, and then decide if it warrants impeachment.
The other questions not answered -
(IIRC some appeal courts do this - cases are heard by 3 of the justices, but one can appeal their ruling for reconsideration by all the justices?)
Moderator Note
This being General Questions, let’s keep the discussion to the legal mechanism and precedents for it. Let’s avoid specific political discussion. Other forums are available for that.
Colibri
General Questions Moderator
The only time in recent history (that I am aware of) that Congress reduced the number of Article III seats on a court was the Court Security Improvement Act of 2007, which reduced the D.C. Circuit from 12 to 11 judges. The act itself simply replaced the “12” with “11”. I don’t know what the decision process was (or who made it), but they ended up eliminating Seat 8, which was then-vacant (and had been vacated in 2005).
There is a theory that Article III judges are re-assignable at will (i.e., Congress can reduce the Supreme Court from 9 to 6 and simply assign Justices Kagan, Breyer, and Sotomayor to various district courts around the country). But that seems implausible and is inconsistent with the practice of nominating a judge to each judicial office that s/he holds (i.e., Sotomayor was nominated, and confirmed, as a district judge; then again nominated and confirmed as a circuit judge; then again to the Supreme Court).
Most likely, you would adopt a statue that eliminates seats upon becoming vacant. And then it’s just a question of who vacates office first.
I agree with those above who say that even if Congress drops the number of justices to six, the current court will remain unchanged until attrition takes them away. No new justices would be appointed until the number of seated justices dropped below six.
Another potential way of “unpacking” the court that I have not heard discussed recently is “jurisdiction stripping.” That is, taking away the court’s jurisdiction to hear cases on certain topics. https://fas.org/sgp/crs/misc/R44967.pdf
I don’t know the limits on Congress’s ability to strip appellate jurisdiction from the Supreme Court. If you take enough jurisdiction away, the remaining justices can’t do much but twiddle their thumbs. This would effectively limit the damage a partisan Supreme Court could do. I doubt the Supreme Court would uphold a statute statute that stripped them of all appellate jurisdiction though. More realistically, could Congress deprive the Supreme Court of appellate jurisdiction over states’ gun control laws? Or states’ abortion regulations? Could they deprive the Supreme Court of appellate jurisdiction over these matters but still allow District Court’s to hear hear them and Circuits to hear appeals? I ask because I am very curious and I simply don’t know the answer.
In July 1866, as noted, Congress, locked in mortal combat with President Andrew Johnson, reduced the size of the Supreme Court from ten justices to seven. The bill was passed for the specific purpose of denying Johnson the power to fill one seat which was vacant at the time, plus the next two which might become vacant. However Congress did not attempt to expel any sitting incumbent justices.
In 1869, after US Grant was elected, Congress set the Court at its still-current size of nine members.
What if Congress did abolish an existing judicial seat? That also has happened, but not with respect to the Supreme Court. In 1802 Democrat-Republicans gained control of Congress and passed the Judiciary Act of 1802, which abolished many of the lower-court judgeships that the Federalists had created as a last-gasp measure after losing the election of 1800. The Supreme Court meekly acquiesced to the abolition of these judgeships in the case of Stuart v. Laird. I am not at all confident that the latter case would be sustained today, after 200 years of firmly established judicial review.
For anyone who is interested, here is an article where some academics propose court reforms, including jurisdiction stripping, to make the court more democratic. It’s an interesting read even if it’s not particularly in depth.
I’m not a fan of jurisdiction stripping in general, and some of the proposals in that article strike me as terrifying.
The Constitution says (in Article III section 2, emphasis below mine):
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.[/quote]
The “Cases before mentioned” must refer to “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made” mentioned previously, so I would say that the existence of appellate jurisdiction of the Supreme Court is safeguarded by the Constitution. Subject to the possibility of establishing exceptions by statute, but that would be an exceedingly bad idea no matter your partisan position - removing judicial review of statues from appellate jurisdiction wouldn’t mean no such judicial review would take place at all, it would simply mean this review would take place in the lower courts and stay there. In effect, each District Court or Court of Appeals could go ahead striking down laws on its own with nu mechanism in plae to ensure uniform application across the country.
As I understood(IANAL) congress use jurisdiction stripping which can deny the court the right to hear certain cases. However, the court still has the right to determine if that law which mandates the stripping is unconstitutional. So a “stripping” law has to be carefully crafted.