Congressional Control over the Supreme Court

Changes from January 11, 2023 to December 6, 2023

This page shows textual changes in the document between the two versions indicated in the dates above. Textual matter removed in the later version is indicated with ~~red strikethrough~~ and textual matter added in the later version is indicated with blue.

Congressional Control over the Supreme Court ~~January 11~~December 6, 2023 , 2023
The Constitution’s Framers structured the Constitution to promote the separation of powers and 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 protect the federal courts from undue influence by Congress and the executive branch. Among
Joanna R. Lampe
the federal courts, the Constitution grants the Supreme Court special status. As a historical the federal courts, the Constitution grants the Supreme Court special status. As a historical
Legislative Attorney Legislative Attorney
matter, Congress has also traditionally recognized that the Supreme Court plays a unique role matter, Congress has also traditionally recognized that the Supreme Court plays a unique role

within the constitutional system. within the constitutional system.

However, the Constitution does not impose complete separation between the judiciary and the 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 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 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 long-Congress, substantial power to regulate and otherwise influence the federal courts. 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 standing practice also establish that Congress has the power to regulate many aspects of the Supreme Court’s structure and
procedures. procedures.
Discussion of Supreme Court regulation and reform has attracted significant public attention at various points in American 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 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 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. 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 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 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 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 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 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 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. 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. 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 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 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 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 Court can declare a law unconstitutional; allowing Congress to override Supreme Court decisions; imposing new judicial
ethics rules for Justicesethics 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 ; and expanding transparency through means such as allowing video recordings of Supreme Court
proceedings. proceedings.
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he Constitution’s Framers structured the Constitution to promote the separation of powers 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 and, in particular, to protect the federal courts from undue influence by the political
T branches—Congress and the executive branch.1 In the T branches—Congress and the executive branch.1 In the Federalist Papers, Alexander , Alexander
Hamilton advocated for constitutional provisions designed to promote “the complete separation 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 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 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 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, certain important protections3 but also grants the political branches, and especially Congress,
substantial power to regulate and otherwise influence the federal courts.4 substantial power to regulate and otherwise influence the federal courts.4
The political branches’ influence over the federal courts may take several forms. The President 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 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 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 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 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 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 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 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 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 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 impose term or age limits for Supreme Court Justices.10 As discussed below, Congress has broad

1 1 See, e.g., 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 44 (Max Farrand ed., 1911) (discussion of how , 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); salary protection for judges could support judicial independence); id. at 429 (statement of Mr. Wilson, in discussion of 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 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.”); might prevail in the two branches of our Govt.”); cf. THE FEDERALIST NO. 78 (Alexander Hamilton). THE FEDERALIST NO. 78 (Alexander Hamilton).
2 THE FEDERALIST NO. 79 (Alexander Hamilton). 2 THE FEDERALIST NO. 79 (Alexander Hamilton).
3 3 See Cong. Research Serv., Cong. Research Serv., Overview of Federal Judiciary Protections, CONSTITUTION ANNOTATED, , CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S1-10-1/ALDE_00013554/ (last visited Jan. 5, 2023). https://constitution.congress.gov/browse/essay/artIII-S1-10-1/ALDE_00013554/ (last visited Jan. 5, 2023).
4 4 See Cong. Research Serv., Cong. Research Serv., Overview of Congressional Control Over Judicial Power, CONSTITUTION ANNOTATED, , CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S1-5-1/ALDE_00013528/ (last visited Jan. 5, 2023); Cong. https://constitution.congress.gov/browse/essay/artIII-S1-5-1/ALDE_00013528/ (last visited Jan. 5, 2023); Cong.
Research Serv., Research Serv., Overview of Establishment of Article III Courts, CONSTITUTION ANNOTATED, , CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S1-8-1/ALDE_00013557/ (last visited Jan. 5, 2023). 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 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 “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. President’s nominees, including for political reasons, or it may choose not to act on them. See generally Cong. Cong.
Research Serv., Research Serv., Appointments of Justices to the Supreme Court, CONSTITUTION ANNOTATED, , CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artII-S2-C2-3-5/ALDE_00013096/ (last visited Jan. 5, 2023). 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; 6 U.S. CONST. art. II, § 4; id. art. I, § 2, cl. 5; art. I, § 2, cl. 5; id. art. I, § 3, cl. 6. Congress has at times exercised the impeachment 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 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 and removed a Supreme Court Justice. The Constitution strictly limits involuntary removal of federal judges by any
means other than impeachment. means other than impeachment. Id. art. III, § 1 (providing that federal judges “shall hold their Offices during good art. III, § 1 (providing that federal judges “shall hold their Offices during good
Behaviour”); Behaviour”); see also infra “Constitutionality of Legislation Modifying Life Tenure.””
7 7 See Cong. Research Serv., Cong. Research Serv., Exceptions Clause and Congressional Control Over Appellate Jurisdiction, CONSTITUTION , CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C2-6/ALDE_00013618/ (last visited Jan. 5, ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C2-6/ALDE_00013618/ (last visited Jan. 5,
2023). 2023).
8 Proposed changes to judicial nominations, confirmation, or impeachments are generally outside the scope of this 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 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. reforms are intended to affect the Supreme Court.
9 9 See infra “Changes to the Size of the Supreme Court.”
10 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 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. 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 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 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 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 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 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 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 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 supermajority of Justices before the Court can declare a law unconstitutional, or allowing
Congress to override Supreme Court decisions;14 imposing Congress to override Supreme Court decisions;14 imposing or enforcing new judicial ethics rules for Justices;15 new judicial ethics rules for Justices;15
or expanding transparency through means such as allowing video recordings of Supreme Court 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 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 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 may raise questions about separation of powers and the role of the judiciary within the American
system of government. system of government.
Legal and Historical Background
Among the federal courts, the Constitution grants the Supreme Court special status. Article III 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 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 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 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 “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 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 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 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 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 applies only to the inferior federal courts, leaving the high court greater leeway to manage its own

11 11 See infra “Other Structural Changes to the Supreme Court.”
12 12 See infra “Motions Practice: the “Shadow Docket”.’” ’”
13 13 See infra “Limits on Jurisdiction.”
14 14 See infra “Voting Rules and Congressional Override.”
15 15 See infra “Judicial Ethics.”
16 16 See infra “Cameras in the Courtroom and Other Transparency Measures.”
17 U.S. CONST. art. III, § 1; 17 U.S. CONST. art. III, § 1; see also Cong. Research Serv., 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/ , CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-8-2/ALDE_00013558/
(last visited Jan. 5, 2023). (last visited Jan. 5, 2023).
18 While Congress has never tested the limits of this text, it arguably prohibits Congress from abolishing the Supreme 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 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. “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., Cong. Research Serv., Supreme Court and Congress, CONSTITUTION , CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-8-3/ALDE_00013559/ (last visited Jan. 5, 2023). 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. 19 U.S. CONST. art. III, § 2, cl. 2.
20 20 See, e.g., Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861). , Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861). See generally Cong. Research Serv., Cong. Research Serv., Supreme
Court Original Jurisdiction, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C2-, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C2-
2/ALDE_00001220/ (last visited Jan. 5, 2023). 2/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 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 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 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 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 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 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 Congress has the power to regulate many aspects of the Supreme Court’s structure and
procedures. procedures.
Discussion of Supreme Court regulation and reform has attracted significant public attention at 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 far-various points in American history. For instance, in the early 1800s, Congress enacted far-
reaching alterations to the federal judiciary—including a change to the Court’s size—only to reaching 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 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 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 Reconstruction policies.25 During the Great Depression, President Franklin Delano Roosevelt’s
Administration proposed Court expansion legislation, sometimes called the “court packing plan,” 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 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 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 ,27 some legislators advanced proposals that would limit the power of the
Court to hold state actions unconstitutional.28 Court to hold state actions unconstitutional.28
Supreme Court reform has garnered renewed public attention in the past decade. Key areas of 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 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 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. deferred to the Supreme Court to make its own procedural rules. See CRS In Focus IF11557, CRS In Focus IF11557, Congress, the Judiciary,
and Civil and Criminal Procedure, by Joanna R. Lampe, by Joanna R. Lampe (2020). .
22 For instance, Congress has never enacted legislation to impose voting rules on the Court, 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, ” 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 23 For example, some oppose changing the size of the Supreme Court in order to change the Court’s ideological
balance, balance, see infra “Constitutionality of Changes to the Size of the Supreme Court,” or legislating to impose new ethical or legislating to impose new ethical
requirements on the Justices, requirements on the Justices, see infra “Judicial Ethics.”
24 24 See Judiciary Act of 1801, ch. 4, 2 Stat. 89; Act of Mar. 8, 1802, ch. 9, 2 Stat. 132. Judiciary Act of 1801, ch. 4, 2 Stat. 89; Act of Mar. 8, 1802, ch. 9, 2 Stat. 132.
25 25 See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869) (applying legislation limiting jurisdiction over a petition for a McCardle, 74 U.S. (7 Wall.) 506 (1869) (applying legislation limiting jurisdiction over a petition for a
writ of writ of habeas corpus from a civilian convicted of acts obstructing Reconstruction). from a civilian convicted of acts obstructing Reconstruction).
26 26 See, e.g., Fed. Jud. Ctr., , Fed. Jud. Ctr., FDR’s “Court-Packing” Plan, https://www.fjc.gov/history/timeline/fdrs-court-packing-plan , https://www.fjc.gov/history/timeline/fdrs-court-packing-plan
(last visited Jan. 5, 2023); (last visited Jan. 5, 2023); see also infra “History and Practice on the Size of the Court.”
27 347 U.S. 483 (1954). 27 347 U.S. 483 (1954).
28 28 See PRESIDENTIAL COMM’N ON THE SUPREME CT. OF THE UNITED STATES, FINAL REPORT 57 (2021), 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, https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.pdf [hereinafter, SCOTUS
Commission Report]. ].
29 29 See, e.g., William Baude, , William Baude, The Supreme Court’s Secret Decisions, N.Y. TIMES (Feb. 3, 2015), , N.Y. TIMES (Feb. 3, 2015),
https://www.nytimes.com/2015/02/03/opinion/the-supreme-courts-secret-decisions.html; 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). 117th Cong. 1 (2021).
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politicization, both in the selection and confirmation of judicial nominees and in the Court’s 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 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 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 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 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 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 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 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 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 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 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 against Supreme Court reform, including an appraisal of the merits and legality of particular
reform proposals.”34 reform proposals.”34
In December 2021, the commission issued a report outlining the history of Supreme Court 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 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 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 strengths and weaknesses of the proposals,” including “consideration of whether specific
proposals could reasonably be expected to achieve the objectives that their proponents desire,” 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 “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 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 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 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 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 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 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 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 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 30 See, e.g., John Fritze & Chelsey Cox, , 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/ketanji-, USA TODAY (Apr. 15, 2022), https://www.usatoday.com/story/news/politics/2022/04/15/ketanji-
brown-jackson-poll-finds-skepticism-over-confirmation-process/7310985001/ (politicization of the confirmation brown-jackson-poll-finds-skepticism-over-confirmation-process/7310985001/ (politicization of the confirmation
process); Ronald A. Cass, 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 , 27 GEO. MASON L. REV. 29, 53–55 (2019) (nationwide injunctions and
politicization); Walter Shapiro, politicization); Walter Shapiro, The Case Against Court-Packing, BRENNAN CTR. FOR JUSTICE (June 24, 2019), , BRENNAN CTR. FOR JUSTICE (June 24, 2019),
https://www.brennancenter.org/our-work/analysis-opinion/case-against-court-packing (court expansion and https://www.brennancenter.org/our-work/analysis-opinion/case-against-court-packing (court expansion and
politicization). politicization).
31 31 See, e.g., James Arkin, , James Arkin, Democrats Renew Call To Expand Supreme Court Post-Dobbs, LAW360 (July 18, 2022), , LAW360 (July 18, 2022),
https://www.law360.com/articles/1512716/democrats-renew-call-to-expand-supreme-court-post-dobbs; Ian Millhiser, 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-packing-, VOX (July 2, 2022), https://www.vox.com/23186373/supreme-court-packing-
roe-wade-voting-rights-jurisdiction-stripping. roe-wade-voting-rights-jurisdiction-stripping.
32 Exec. Order No. 14,023, 86 Fed. Reg. 19,569 (Apr. 9, 2021). 32 Exec. Order No. 14,023, 86 Fed. Reg. 19,569 (Apr. 9, 2021).
33 33 Id.
34 34 Id.
35 35 SCOTUS Commission Report, , supra no note 28. The commission did not consider changes to the nomination and The commission did not consider changes to the nomination and
confirmation process except in an appendix. confirmation process except in an appendix.
36 36 Id. at 1. at 1.
37 37 Id.
38 38 Id.
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~~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~~
that are most relevant to Congress. Readers seeking additional historical background or policy 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. 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 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 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. 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 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 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 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. 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 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 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 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 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 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 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 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 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 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 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 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 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 means by which political actors may influence the Supreme Court’s approach to interpreting
the law. 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 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 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 constitutional requirement that Justices hold their offices “during good Behaviour.”43 Historical
practice generally reflects that understanding. 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 39 See 28 U.S.C. § 1. 28 U.S.C. § 1.
40 U.S. CONST. art. III, § 1. 40 U.S. CONST. art. III, § 1.
41 41 Id. art. I, § 8, cl. 9. art. I, § 8, cl. 9.
42 42 Id. art. I, § 8, cl. 18. Using these powers, Congress has enacted legislation to constitute the Supreme Court and 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 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., 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/ , CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-8-1/ALDE_00013557/
(last visited Jan. 5, 2023). (last visited Jan. 5, 2023).
43 U.S. CONST. art. III, § 1; 43 U.S. CONST. art. III, § 1; see also infra “Constitutionality of Legislation Modifying Life Tenure.”
44 See 28 U.S.C. § 1. Congressional Research Service Congressional Research Service

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~~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.~~
Congress first exercised its authority to structure the federal courts in the Judiciary Act of 1789.45 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 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 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 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 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 Congress repealed the 1801 law before any vacancy occurred, leaving the size of the Court at six
Justices.49 Justices.49
Over the following decades, Congress enacted multiple statutes changing the size of the Court.50 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 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 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’ 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 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 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 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 10-bench. Some commentators argue the reduction stemmed at least in part from concerns that a 10-
Justice Court was too large or from the sitting Chief Justice’s desire to increase the Justices’ Justice 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 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 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 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 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 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 motivated by a mix of institutional and political concerns.”56
The Reconstruction Era was not the last time that Congress considered legislation that would 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 expand the Supreme Court. In the 1930s, President Franklin Delano Roosevelt backed sweeping

~~44 See 28 U.S.C. § 1.~~
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. 45 Judiciary Act of 1789, ch. 20, § 1, 1 Stat. 73, 73.
46 46 Id.
47 Judiciary Act of 1801, ch. 4, § 3, 2 Stat. 89, 89. 47 Judiciary Act of 1801, ch. 4, § 3, 2 Stat. 89, 89.
48 48 Id.
49 Act of Mar. 8, 1802, ch. 9, § 1, 2 Stat. 132, 133. 49 Act of Mar. 8, 1802, ch. 9, § 1, 2 Stat. 132, 133.
50 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. , 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 51 See Act of Mar. 3, 1863, ch. 100, § 1, 12 Stat. 794, 794. Act of Mar. 3, 1863, ch. 100, § 1, 12 Stat. 794, 794.
52 52 Compare JUSTIN CROWE, BUILDING THE JUDICIARY: LAW, COURTS, AND THE POLITICS OF INSTITUTIONAL JUSTIN CROWE, BUILDING THE JUDICIARY: LAW, COURTS, AND THE POLITICS OF INSTITUTIONAL
DEVELOPMENT 153–59 (2012), DEVELOPMENT 153–59 (2012), with Tara Leigh Grove, Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 VAND. , 71 VAND.
L. REV. 465, 507 (2018). L. REV. 465, 507 (2018).
53 53 See Judiciary Act of 1866, ch. 210, 14 Stat. 209, 209. Judiciary Act of 1866, ch. 210, 14 Stat. 209, 209.
54 54 Compare Erick Trickey, Erick Trickey, The History of ‘Stolen’ Supreme Court Seats, SMITHSONIAN MAG. (Sept. 25, 2020), , SMITHSONIAN MAG. (Sept. 25, 2020),
https://www.smithsonianmag.com/history/history-stolen-supreme-court-seats-180962589/, https://www.smithsonianmag.com/history/history-stolen-supreme-court-seats-180962589/, and Timothy Huebner, Timothy Huebner, The
First Court-packing Plan, SCOTUSBLOG (July 3, 2013), https://www.scotusblog.com/2013/07/the-first-court-packing-, SCOTUSBLOG (July 3, 2013), https://www.scotusblog.com/2013/07/the-first-court-packing-
plan/, plan/, with The 19th-Century History of Court Packing, NAT’L CONSTITUTION CTR. (Sept. 24, 2020), , NAT’L CONSTITUTION CTR. (Sept. 24, 2020),
https://constitutioncenter.org/news-debate/podcasts//the-19th-century-history-of-court-packing. https://constitutioncenter.org/news-debate/podcasts//the-19th-century-history-of-court-packing.
55 55 See Circuit Judges Act of 1869, ch. 22, 16 Stat. 44, 44. Circuit Judges Act of 1869, ch. 22, 16 Stat. 44, 44.
56 56 SCOTUS Commission Report, , supra no note 28, at 68. at 68.
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~~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~~
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). Congressional Research Service 6 link to page 7 Congressional Control over the Supreme Court service who did not retire within six months of reaching the age of 70, including up to six new 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 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 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 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 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 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 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 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 the Supreme Court also publicly opposed the proposal on both practical and separation-of-powers
grounds.61 The bill did not advance in Congress. grounds.61 The bill did not advance in Congress.
While the court expansion proposal was pending before Congress, Justice Owen Roberts, who 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, had previously voted with a majority of the Supreme Court to strike down New Deal legislation,
voted to uphold a minimum wage law in voted to uphold a minimum wage law in West Coast Hotel Co. v. Parrish.62 He later also voted to .62 He later also voted to
uphold other New Deal policies.63 The precise reasons for Justice Roberts’s vote in 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 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 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 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 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 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 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 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 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, 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 but the House Judiciary Committee declined to advance the proposal.66

~~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).~~
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 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. additional judges to the lower federal courts.
59 Franklin D. Roosevelt, 59 Franklin D. Roosevelt, Fireside Chat (Mar. 9, 1937), AM. PRESIDENCY PROJECT, https://www.presidency.ucsb.edu/ (Mar. 9, 1937), AM. PRESIDENCY PROJECT, https://www.presidency.ucsb.edu/
documents/fireside-chat-17. documents/fireside-chat-17.
60 S. REP. NO. 75-711 (1937). 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). 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). 62 300 U.S. 379, 390–400 (1937).
63 63 See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 49 (1937); Charles C. Steward Mach. Co. v. Davis, 301 U.S. 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). 548, 578–98 (1937).
64 64 See, e.g., David E. Ho & Kevin M. Quinn, , David E. Ho & Kevin M. Quinn, Did a Switch in Time Save Nine?, 2 J. LEGAL ANALYSIS 69 (2010). , 2 J. LEGAL ANALYSIS 69 (2010).
65 65 See, e.g., Shapiro, , Shapiro, supra no note 30; Adam Liptak, Adam Liptak, The Precedent, and Perils, of Court Packing, N.Y. TIMES (Oct. 12, , N.Y. TIMES (Oct. 12,
2020), https://www.nytimes.com/2020/10/12/us/supreme-court-packing.html; 2020), https://www.nytimes.com/2020/10/12/us/supreme-court-packing.html; see also, e.g., Daniel Epps & Ganesh , Daniel Epps & Ganesh
Sitaraman, Essay, Sitaraman, Essay, Supreme Court Reform and American Democracy, YALE L.J.F. 821, 822 (2021) (describing Court , YALE L.J.F. 821, 822 (2021) (describing Court
expansion as a “third rail in American politicsexpansion as a “third rail in American politics.”). ”).
66 66 See 99 CONG. REC. 1106 (1953); C.P. Trussell, 99 CONG. REC. 1106 (1953); C.P. Trussell, Court Amendment Tabled in House, N.Y. TIMES, Aug. 4, 1954, at 11, , 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-bid-https://www.nytimes.com/1954/08/04/archives/court-amendment-tabled-in-house-judiciary-group-118-kills-bid-
to.html. The measure would also have required Justices to retire at age 75. Congressional Research Service Congressional Research Service

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~~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~~
caseload.67 While Congress has not recently changed the size of the Supreme Court, it has 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 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 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. 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 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 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 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 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 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 reduction would occur as Justices left the bench.71
Aside from the foregoing limitation, the Constitution entrusts control over the size and structure 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 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 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 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 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 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 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 consider how they believe the nominee might vote on certain issues if confirmed, and

~~to.html. The measure would also have required Justices to retire at age 75.~~
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 67 See, e.g., , Presidential Commission on the Supreme Court of the United States 19 (Aug. 9, 2021) (written testimony 19 (Aug. 9, 2021) (written testimony
of Michael J. Gerhardt, Prof., Univ. of N.C. at Chapel Hill), https://www.whitehouse.gov/wp-of Michael J. Gerhardt, Prof., Univ. of N.C. at Chapel Hill), https://www.whitehouse.gov/wp-
content/uploads/2021/08/Professor-Michael-J.-Gerhardt.pdf (“There is little doubt about the constitutionality of the content/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.”); 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), 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 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 CourtCongress 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 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, 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 , 2
N.Y.U. J. L. & LIBERTY 86 (2006). N.Y.U. J. L. & LIBERTY 86 (2006).
68 68 See Admin. Off. of the U.S. Cts., Admin. Off. of the U.S. Cts., U.S. Courts of Appeals Additional Authorized Judgeships, U.S. CTS., , U.S. CTS.,
https://www.uscourts.gov/sites/default/files/appealsauth.pdf (last visited Jan. 5, 2022). 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 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 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. their compensation reduced while in office. U.S. CONST. art. III, § 1. See generally Cong. Research Serv., Cong. Research Serv., Overview of
Federal Judiciary Protections, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-
10-1/ALDE_00013554/ (last visited Jan. 5, 2023). 10-1/ALDE_00013554/ (last visited Jan. 5, 2023).
70 For further discussion of Justices’ life tenure, see 70 For further discussion of Justices’ life tenure, see infra “Constitutionality of Legislation Modifying Life Tenure.”
71 71 See Judiciary Act of 1801, ch. 4, § 3, 2 Stat. 89, 89; Judiciary Act of 1866, ch. 211, 14 Stat. 209, 209. 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 Act of
Mar. 8, 1802, ch. 9, § 1, 2 Stat. 132, 132 (repealing legislation authorizing certain federal circuit court judgeships 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). without making any provision for the judges who held the abolished seats).
72 72 See, e.g., Dr. Adam Feldman, , Dr. Adam Feldman, The Next Justice – In The Candidates’ Own Words, EMPIRICAL SCOTUS (June 5, , EMPIRICAL SCOTUS (June 5,
2016), https://empiricalscotus.com/2016/06/05/the-next-justice/; Mark Berman, 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/live-, WASH. POST (Mar. 21, 2017), https://www.washingtonpost.com/politics/2017/live-
updates/trump-white-house/neil-gorsuch-confirmation-hearings-updates-and-analysis-on-the-supreme-court-updates/trump-white-house/neil-gorsuch-confirmation-hearings-updates-and-analysis-on-the-supreme-court-
nominee/trump-promised-judges-who-would-overturn-roe-v-wade/. nominee/trump-promised-judges-who-would-overturn-roe-v-wade/.
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~~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~~
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 (continued...) Congressional Research Service 8 link to page 21 Congressional Control over the Supreme Court constitutional language to the contrary, many scholars contend that Congress possesses the 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 constitutional authority to enlarge the Supreme Court even if the expansion is intended to shape
the Court’s political composition.75 the Court’s political composition.75
On the other hand, legislative efforts to alter the political composition of the federal judiciary may 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 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 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 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 for courts that would interpret the law impartially and explained that the “independence of the
judges is .judges is . . .. requisite to guard the Constitution and the rights of individuals” from encroachment . 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, 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 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 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 resort).78 Article III’s life tenure requirement and salary protections were also designed to insulate
judges from political pressure.79 judges from political pressure.79
If Congress were to change the size or composition of the federal courts in an attempt to obtain 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 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 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 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 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 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 “theory of the bill is in direct violation of the spirit of the American Constitution.”81 Some

~~73 See CRS Report R45300, Questioning Judicial Nominees: Legal Limitations and Practice, by Valerie C. Brannon~~
~~and Joanna R. Lampe.~~
~~74 See, e.g., Christine Kexel Chabot,~~ ~~Do Justices Time Their Retirements Politically? An Empirical Analysis of the~~
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 , 2019 UTAH L. REV. 527 (2019); Adam
Feldman, Feldman, Empirical SCOTUS: Retirement Plan Blues, SCOTUSBLOG (May 23, 2018), , SCOTUSBLOG (May 23, 2018),
https://www.scotusblog.com/2018/05/empirical-scotus-retirement-plan-blues/. https://www.scotusblog.com/2018/05/empirical-scotus-retirement-plan-blues/.
75 75 E.g., Daniel Epps, , Daniel Epps, Non-Originalism and Constitutional Arguments About Changing the Supreme Court’s Size, DORF , DORF
ON LAW (Nov. 2, 2020), http://www.dorfonlaw.org/2020/11/non-originalism-and-constitutional.html; Richard Primus, 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. , HARV.
L. REV. BLOG (Nov. 24, 2017), https://blog.harvardlawreview.org/rulebooks-playgrounds-and-endgames-a-L. REV. BLOG (Nov. 24, 2017), https://blog.harvardlawreview.org/rulebooks-playgrounds-and-endgames-a-
constitutional-analysis-of-the-calabresi-hirji-judgeship-proposal/. constitutional-analysis-of-the-calabresi-hirji-judgeship-proposal/.
76 76 See, e.g., 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 44 (Max Farrand ed., 1911) (discussion of how , 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); salary protection for judges could support judicial independence); id. at 429 (statement of Mr. Wilson, in discussion of 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 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.”). might prevail in the two branches of our Govt.”).
77 THE FEDERALIST NO. 78 (Alexander Hamilton). 77 THE FEDERALIST NO. 78 (Alexander Hamilton).
78 78 See THE FEDERALIST NO. 81 (Alexander Hamilton). THE FEDERALIST NO. 81 (Alexander Hamilton).
79 79 See infra “Constitutionality of Legislation Modifying Life Tenure”; ; see also Cong. Research Serv., Cong. Research Serv., Overview of
Federal Judiciary Protections, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-
10-1/ALDE_00013554/ (last visited Jan. 5, 2023). 10-1/ALDE_00013554/ (last visited Jan. 5, 2023).
80 80 See, e.g., , Presidential Commission on the Supreme Court of the United States 2, 4 (July 20, 2021) (written testimony 2, 4 (July 20, 2021) (written testimony
of Randy E. Barnett, Prof., Georgetown Univ. Law Ctr.), https://www.whitehouse.gov/wp-of Randy E. Barnett, Prof., Georgetown Univ. Law Ctr.), https://www.whitehouse.gov/wp-
content/uploads/2021/07/Barnett-Testimony.pdf (arguing that “partisan court packing” is “unconstitutional because it content/uploads/2021/07/Barnett-Testimony.pdf (arguing that “partisan court packing” is “unconstitutional because it
violates both the letter and spirit of the Constitution”). violates both the letter and spirit of the Constitution”).
81 S. REP. NO. 75-711, at 3 (1937). 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-reject-it/. Congressional Research Service Congressional Research Service

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~~commentators have likewise opposed recent Court expansion proposals on separation-of-powers~~
~~grounds.82~~
Other commentators base their arguments not on the explicit rules and structure of the 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 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 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 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 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 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 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 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 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 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 other congressional actions, as prior examples of political influence over the Court.87
Assuming politically motivated expansion of the Supreme Court would raise constitutional 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 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 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 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 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 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 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 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 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 116th and 117th Congresses and recent proposals from legal commentators would change the size

~~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-reject-~~
~~it/.~~
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 83 E.g., M. Todd Henderson, , M. Todd Henderson, Court-Packing Is Unconstitutional, NEWSWEEK (Oct. 30, 2020), , NEWSWEEK (Oct. 30, 2020),
https://www.newsweek.com/court-packing-unconstitutional-opinion-1543290; Primus, https://www.newsweek.com/court-packing-unconstitutional-opinion-1543290; Primus, supra no note 75; cf. Richard A. Richard A.
Primus, Primus, Unbundling Constitutionality, 80 U. CHI. L. REV. 1079 (2013). , 80 U. CHI. L. REV. 1079 (2013).
84 84 E.g., Curtis A. Bradley & Neil S. Siegel, 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, , 105 GEO. L.J. 255, 269–87 (2017); Fred Bauer, Biden, Court-Packing, and Constitutional Norms, NAT’L , NAT’L
REV. (Oct. 1, 2020), https://www.nationalreview.com/corner/joe-biden-court-packing-and-constitutional-norms/. REV. (Oct. 1, 2020), https://www.nationalreview.com/corner/joe-biden-court-packing-and-constitutional-norms/.
85 85 E.g., Will Baude, , Will Baude, Why Isn't Court-Packing Unconstitutional?, VOLOKH CONSPIRACY (Oct. 31, 2020), , VOLOKH CONSPIRACY (Oct. 31, 2020),
https://reason.com/volokh/2020/10/31/why-isnt-court-packing-unconstitutional/. https://reason.com/volokh/2020/10/31/why-isnt-court-packing-unconstitutional/.
86 86 See Leah M. Litman, Leah M. Litman, Debunking Antinovelty, 66 DUKE L.J. 1407 (2017). , 66 DUKE L.J. 1407 (2017).
87 87 E.g., Epps, , Epps, supra no note 75.
88 88 See Baude, Baude, supra no note 85; Julian Velasco, Julian Velasco, Congressional Control Over Federal Court Jurisdiction: A Defense of the
Traditional View, 46 CATH. U. L. REV. 671, 760 (1997). , 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. 89 The President and Members of Congress each swear an oath to support or defend the Constitution. See U.S. CONST. U.S. CONST.
art. II, § 1, cl. 8; art. II, § 1, cl. 8; id. art. VI. art. VI.
90 90 See, e.g., Maggie Astor, , Maggie Astor, Ginsburg’s Death Revives Calls for Court Packing, N.Y. TIMES (Sept. 19, 2020), , 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, 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), , N.Y. MAG. (Sept. 22, 2020),
https://nymag.com/intelligencer/2020/09/mcconnell-hypocrisy-rbg-trump-democrats-court-packing.html. https://nymag.com/intelligencer/2020/09/mcconnell-hypocrisy-rbg-trump-democrats-court-packing.html.
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~~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~~
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-an-end-of-the-nine. Congressional Research Service 10 link to page 21 Congressional Control over the Supreme Court include 15 Justices: five permanent Justices affiliated with Republicans, five permanent Justices 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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. 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 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 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 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 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 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 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 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 encouraging strategic retirements by sitting Supreme Court Justices;98 delaying, expediting, or

~~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-an-~~
~~end-of-the-nine.~~
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, 92 Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L.J. 148, 193–205 (2019). , 129 YALE L.J. 148, 193–205 (2019).
93 Eric J. Segall, 93 Eric J. Segall, Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, 45 PEPP. L. , 45 PEPP. L.
REV. 547 (2018). REV. 547 (2018).
94 94 See Judiciary Act of 1801, ch. 4, § 3, 2 Stat. 89, 89; Judiciary Act of 1866, ch. 211, 14 Stat. 209, 209. 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 95 For discussion of Justices’ life tenure, see infra “Constitutionality of Legislation Modifying Life Tenure.”
96 U.S. CONST. art. II, § 2, cl. 2; 96 U.S. CONST. art. II, § 2, cl. 2; see also Cong. Research Serv., 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 CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artII-S2-C2-3-5/ALDE_00013096/ (last
visited Jan. 5, 2023). visited Jan. 5, 2023).
97 U.S. CONST. amend. I. A political independent has challenged a state court partisan balance requirement on First 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 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). lacked standing to sue. Carney v. Adams, 141 S. Ct. 493 (2020).
98 98 E.g., Scott Lemieux, , Scott Lemieux, When Do Supreme Court Justices Retire? When the Politics Are Right., WASH. POST (Aug. 28, , WASH. POST (Aug. 28,
2019), https://www.washingtonpost.com/outlook/2019/08/28/when-do-supreme-court-justices-retire-when-politics-are-2019), https://www.washingtonpost.com/outlook/2019/08/28/when-do-supreme-court-justices-retire-when-politics-are-
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~~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.~~right/. 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 (continued...) Congressional Research Service 11 link to page 15 link to page 7 Congressional Control over the Supreme Court
First, many of the foregoing practices or proposals are premised on the view that a judge 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 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 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 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 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 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, 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 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 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 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 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 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 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 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 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 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 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 traditional understanding of courts as independent, non-political entities. Besides the possible
constitutional issues discussed above, many commentators worry that proposals that seek to constitutional issues discussed above, many commentators worry that proposals that seek to

~~right/.~~
~~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.
~~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~~
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), , NPR (May 29, 2013),
https://www.npr.org/sections/itsallpolitics/2013/05/29/186952724/Senators-Tussle-Over-Unpacking-Key-D-C-Court. https://www.npr.org/sections/itsallpolitics/2013/05/29/186952724/Senators-Tussle-Over-Unpacking-Key-D-C-Court.
101 101 See, e.g., “Making Predictions About Nominees” section of CRS Report R47050, , “Making Predictions About Nominees” section of CRS Report R47050, The Nomination of Judge Ketanji
Brown Jackson to the Supreme Court, coordinated by David Gunter, coordinated by David Gunter (2022); “Predicting a Nominee’s Future Court Decisions” ; “Predicting a Nominee’s Future Court Decisions”
section of CRS Report R46562, 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, coordinated by Valerie C. Brannon, Michael John Garcia, and Caitlain Devereaux Lewis (2020). .
102 102 See, e.g., Brannon et al., , Brannon et al., supra no note 101, “Criminal Law and Procedure” section (“Criminal law and procedure is an “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 area where Supreme Court alignments are often not divided neatly between the Court's more conservative and liberal
wings.”). wings.”).
103 103 See, e.g., , id., “Predicting a Nominee's Future Court Decisions” section. , “Predicting a Nominee's Future Court Decisions” section.
104 104 E.g., Michael Hiltzik, , Michael Hiltzik, Column: Ginsburg’s Death Makes Supreme Court Expansion Much More Urgent, L.A. TIMES , L.A. TIMES
(Sept. 21, 2020), https://www.latimes.com/business/story/2020-09-21/ginsburg-death-court-packing-scheme; Todd (Sept. 21, 2020), https://www.latimes.com/business/story/2020-09-21/ginsburg-death-court-packing-scheme; Todd
Gitlin, Gitlin, Republicans Have Already Packed the Supreme Court. Unpack it by Making it Bigger., USA TODAY (Oct. 29, , USA TODAY (Oct. 29,
2020), https://www.usatoday.com/story/opinion/2020/10/29/republicans-packed-supreme-court-expand-repair-damage-2020), https://www.usatoday.com/story/opinion/2020/10/29/republicans-packed-supreme-court-expand-repair-damage-
column/6054522002/. column/6054522002/.
105 105 E.g., Barbara Sprunt, , Barbara Sprunt, Biden Campaign Continues To Deflect On Court-Packing, NPR (Oct. 11, 2020), , NPR (Oct. 11, 2020),
https://www.npr.org/2020/10/11/922806310/biden-campaign-continues-to-deflect-on-court-packing. https://www.npr.org/2020/10/11/922806310/biden-campaign-continues-to-deflect-on-court-packing.
106 106 E.g., Jennifer Rubin, , Jennifer Rubin, Why Court-Packing Is a Really Bad Idea, WASH. POST (Mar. 19, 2019), , WASH. POST (Mar. 19, 2019),
https://www.washingtonpost.com/opinions/2019/03/19/why-court-packing-is-really-bad-idea/; 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) , 116th Cong. 2 (2020)
(statement of Sen. Mike Lee). (statement of Sen. Mike Lee).
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~~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~~
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-politicize-column/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-packing-is-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-tat-supreme-court-game-is-about-to-reach-a-catastrophic-conclusion/2020/09/22/77453cda-fd0b-11ea-b555-4d71a9254f4b_story.html. Congressional Research Service 12 link to page 13 link to page 16 link to page 10 link to page 10 link to page 26 link to page 28 link to page 28 Congressional Control over the Supreme Court ability of the federal judiciary to administer justice impartially.108 Some proponents of Court 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 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 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 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 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 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 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 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 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 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 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 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 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 expansion that would not involve changing the size of the Supreme Court, often including
reforms discussed elsewhere in this report.114 reforms discussed elsewhere in this report.114
Changes to Supreme Court Justices’ Tenure
Among other provisions intended to safeguard judicial independence,115 the Constitution Among other provisions intended to safeguard judicial independence,115 the Constitution
guarantees that Supreme Court Justices “shall hold their Offices during good Behaviour.”116 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 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 constitutional provision gives Supreme Court Justices life tenure unless they leave the bench

~~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-politicize-~~
~~column/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-packing-~~
~~is-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-tat-~~
~~supreme-court-game-is-about-to-reach-a-catastrophic-conclusion/2020/09/22/77453cda-fd0b-11ea-b555-~~
~~4d71a9254f4b_story.html.~~
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 108 108 E.g., Kathryn Haglin et al., , Kathryn Haglin et al., Americans Don’t Trust the Supreme Court. That’s Dangerous, WASH. POST (Oct. 10, , WASH. POST (Oct. 10,
2022), https://www.washingtonpost.com/politics/2022/10/10/supreme-court-public-opinion-legitimacy-crisis/. 2022), https://www.washingtonpost.com/politics/2022/10/10/supreme-court-public-opinion-legitimacy-crisis/.
109 109 E.g., Pema Levy, , Pema Levy, How Court-Packing Went From a Fringe Idea to a Serious Democratic Proposal, MOTHER JONES , MOTHER JONES
(Mar. 22, 2019), https://www.motherjones.com/politics/2019/03/court-packing-2020/. (Mar. 22, 2019), https://www.motherjones.com/politics/2019/03/court-packing-2020/.
110 110 E.g., Eric Levitz, , Eric Levitz, Republicans Oppose Court Packing (Except When They Support It), N.Y. MAG. (Oct. 14, 2020), , N.Y. MAG. (Oct. 14, 2020),
https://nymag.com/intelligencer/2020/10/republicans-court-packing-hypocrisy-georgia-arizona-study.html. https://nymag.com/intelligencer/2020/10/republicans-court-packing-hypocrisy-georgia-arizona-study.html.
111 111 E.g., Jurecic & Hennessey, , Jurecic & Hennessey, supra no note 91.
112 H.J.Res. 95, 116th Cong. (2020). 112 H.J.Res. 95, 116th Cong. (2020).
113 S. 4805, 116th Cong. (2020). 113 S. 4805, 116th Cong. (2020).
114 114 E.g., Ian Millhiser, , Ian Millhiser, 9 Ways to Reform the Supreme Court Besides Court-Packing, VOX (Oct. 21, 2020), , VOX (Oct. 21, 2020),
https://www.vox.com/21514454/supreme-court-amy-coney-barrett-packing-voting-rights. https://www.vox.com/21514454/supreme-court-amy-coney-barrett-packing-voting-rights.
115 115 See, e.g.,, U.S. CONST. art. III, § 1 (providing that Supreme Court Justices shall “receive for their Services, a 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”); Compensation, which shall not be diminished during their Continuance in Office”); see also THE FEDERALIST NO. 78 THE FEDERALIST NO. 78
(Alexander Hamilton); THE FEDERALIST NO. 79 (Alexander Hamilton).(Alexander Hamilton); THE FEDERALIST NO. 79 (Alexander Hamilton).
116 U.S. CONST. art. III, § 1. 116 U.S. CONST. art. III, § 1.
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~~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~~
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.” Congressional Research Service 13 Congressional Control over the Supreme Court of their offices.”119 Thus, when establishing the federal judiciary, the Constitution’s Framers 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 decided to insulate judicial tenure from political control. For instance, Alexander Hamilton stated
in the in the Federalist Papers that federal judges could not be expected to enforce constitutional that federal judges could not be expected to enforce constitutional
limitations on the federal government or protect individuals’ rights if they held temporary office 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 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 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 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 Offices during good Behaviour.”122 Although the Constitution does not define good Behaviour,123 ,123
the the Federalist Papers suggest that federal judges will be “secured in their places for life” so long 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 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 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 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 remained on the Court until they pass away or voluntarily leave the bench.126

~~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.”~~
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. 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). , United States v. Hatter, 532 U.S. 557, 567–69 (2001).
120 120 See THE FEDERALIST NO. 78 (Alexander Hamilton) (“That inflexible and uniform adherence to the rights of the 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 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, 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 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 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 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 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.”).popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.”).
121 121 See, e.g., , id. (“ (“~~[A]~~A temporary duration in office, which would naturally discourage [qualified jurists] from quitting 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 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.”). hands less able, and less well qualified, to conduct it with utility and dignity.”).
122 U.S. CONST. art. III, § 1. 122 U.S. CONST. art. III, § 1.
123 123 See Judith Resnik, Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 CARDOZO L. , 26 CARDOZO L.
REV. 579, 639–40 (2005) (“The Constitution does not directly address the question of what ‘good Behaviour’ means.”).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). 124 THE FEDERALIST NO. 79 (Alexander Hamilton).
125 125 See, e.g., United States , United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955) (explaining that Article III courts “are 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. 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 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. 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 Hatter, 532 U.S. 557, 567 (2001) (explaining that the Good Behavior Clause grants federal judges “the practical
equivalent of life tenure”). equivalent of life tenure”).
126 126 See, e.g., Daniel J. Meador, , Daniel J. Meador, Thinking About Age and Supreme Court Tenure, , in REFORMING THE COURT: TERM REFORMING THE COURT: TERM
LIMITS FOR SUPREME COURT JUSTICES 115 (2006) (“As a practical matter, only death or a voluntary act of the justice 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, can terminate service on the Court.”); Todd C. Peppers & Chad M. Oldfather, Till Death Do Us Part: Chief Justices
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~~Congressional Control over the Supreme Court~~

~~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~~
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). Congressional Research Service 14 Congressional Control over the Supreme Court collecting a salary.130 Senior Justices may not hear Supreme Court cases or vote on which cases 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 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 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 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 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 after they become eligible to take senior status,134 and it is fairly common for Justices to remain in
active service until death.135 active service until death.135
Third, Justices who become unable to perform the office’s duties may Third, Justices who become unable to perform the office’s duties may retire for disability.136 .136
Justices who retire for disability after 10 years of judicial service continue receiving the same 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 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 years of service receive half of that salary.137
Finally, a Justice who is ineligible to retire with a salary may Finally, a Justice who is ineligible to retire with a salary may resign from the Court.138 For from the Court.138 For
instance, Justice Arthur Goldberg resigned after three years to become the ambassador to the instance, Justice Arthur Goldberg resigned after three years to become the ambassador to the
United Nations.139 United Nations.139

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).~~
A President may appoint a new Supreme Court Justice when a sitting Justice either dies, voluntarily leaves the Court, or is impeached and convicted.140 130 130 See id. § 371(b), (e). § 371(b), (e).
131 131 See id. § 294(d) (“No . . . designation or assignment [of retired Justices] shall be made to the Supreme Court.”); § 294(d) (“No . . . designation or assignment [of retired Justices] shall be made to the Supreme Court.”);
David R. Stras & Ryan W. Scott, David R. Stras & Ryan W. Scott, Retaining Life Tenure: The Case for a “Golden Parachute,””, 83 WASH. U. L.Q. 1397, 83 WASH. U. L.Q. 1397,
1465 (2005) [hereinafter Stras & Scott, 1465 (2005) [hereinafter Stras & Scott, Golden Parachute] (“Senior Justices . . . do not vote on certiorari petitions [or] ] (“Senior Justices . . . do not vote on certiorari petitions [or]
sit by designation on the Court . . . .”). sit by designation on the Court . . . .”).
132 132 See 28 U.S.C. §§ 294(a), 371(e)(1)(A)-(E). 28 U.S.C. §§ 294(a), 371(e)(1)(A)-(E).
133 133 See, e.g.,, Newton Covenant Church v. Great Am. Ins. Co., 956 F.3d 32 (1st Cir. 2020) (Souter, J.). Newton Covenant Church v. Great Am. Ins. Co., 956 F.3d 32 (1st Cir. 2020) (Souter, J.).
134 134 See, e.g., Roger G. Cramton, , Roger G. Cramton, Reforming the Supreme Court, 95 CAL. L. REV. 1313, 1318 (2007) (observing that , 95 CAL. L. REV. 1313, 1318 (2007) (observing that
Supreme Court Justices “only rarely take senior status when eligible to do so”). Supreme Court Justices “only rarely take senior status when eligible to do so”).
135 135 See, e.g., J. Gordon Hylton, , J. Gordon Hylton, Supreme Court Justices Today Are Unlikely to Die With Their Boots On, MARQUETTE , MARQUETTE
U. L.SCH. FAC. BLOG (Mar. 12, 2012), https://law.marquette.edu/facultyblog/2012/03/supreme-court-justices-today-are-U. L.SCH. FAC. BLOG (Mar. 12, 2012), https://law.marquette.edu/facultyblog/2012/03/supreme-court-justices-today-are-
unlikely-to-die-with-their-boots-on/ (“Since 1789, 102 men and one woman have left the United States Supreme Court unlikely-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 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. that article was written, four Justices have left the Court, two through retirement and two through death. See Sup. Ct. Sup. Ct.
Hist. Soc’y, Hist. Soc’y, Previous Associate Justices, https://supremecourthistory.org/associate-justices/ (last visited Jan. 5, 2023). , https://supremecourthistory.org/associate-justices/ (last visited Jan. 5, 2023).
136 28 U.S.C. § 372(a). 136 28 U.S.C. § 372(a).
137 137 Id.
138 138 See Lisa T. McElroy & Michael C. Dorf, 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). , 61 DUKE L.J. 81, 105 (2011).
139 139 See, e.g., Charles S. Doskow, , Charles S. Doskow, The Juvenile Death Penalty: The Beat Goes On, 24 J. JUV. L. 45, 56 (2004). , 24 J. JUV. L. 45, 56 (2004).
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~~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~~
~~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:~~

140 140 See, e.g.,, 28 U.S.C. § 371(d) (“The President shall appoint, by and with the advice and consent of the Senate, a 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.”); successor to a justice . . . who retires under this section.”); id. § 372(a) (“Any justice . . . of the United States appointed § 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 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.”). 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 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. 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 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 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), 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 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 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 Breyer’s retirement took effect on June 30, 2022, and Justice Jackson was sworn into office the same day. Dareh
Gregorian, Gregorian, Ketanji Brown Jackson Sworn in as First Black Woman on the Supreme Court, NBC NEWS (June 30, 2022), , NBC NEWS (June 30, 2022),
https://www.nbcnews.com/politics/supreme-court/ketanji-brown-jackson-sworn-supreme-court-justice-rcna36115. https://www.nbcnews.com/politics/supreme-court/ketanji-brown-jackson-sworn-supreme-court-justice-rcna36115. See
(continued...) Congressional Research Service 15 link to page 18 link to page 19 link to page 19 link to page 19 link to page 19 Congressional Control over the Supreme Court 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), 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. https://www.justice.gov/olc/file/1494816/download.
141 141 See, e.g., Mary L. Clark, , Mary L. Clark, Judicial Retirement and Return to Practice, 60 CATH. U. L. REV. 841, 888 (2011) (arguing , 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 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”). judiciary’s autonomy to review and interpret the law”).
142 142 See, e.g.,, Ward Farnsworth, Ward Farnsworth, The Regulation of Turnover on the Supreme Court, 2005 U. ILL. L. REV. 407, 446 , 2005 U. ILL. L. REV. 407, 446
(2005); William G. Ross, (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)., 35 VILL. L. REV. 1063, 1137 (1990).
143 143 See Stras & Scott, Stras & Scott, Golden Parachute, , supra no note 131, at 1422 (arguing that life tenure “decelerates the rate of legal at 1422 (arguing that life tenure “decelerates the rate of legal
change”); Arthur D. Hellman, change”); Arthur D. Hellman, Reining in the Supreme Court: Are Term Limits the Answer?, , in REFORMING THE COURT: REFORMING THE COURT:
TERM LIMITS FOR SUPREME COURT JUSTICES 308–09 (2006) (predicting that “stare decisis would get even less respect 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, on a Court whose membership was changing every two years”); Christopher Sundby & Suzanna Sherry, Term Limits
and Turmoil: Roe v. WadeRoe v. Wade’s Whiplash, 98 TEX. L. REV. 121, 156 (2019) (suggesting that Supreme Court term limits , 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 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”). by pushing it away from gradual shifts and towards more sudden jolts”).
144 144 See, e.g., Clark, , Clark, supra no note 141, at 889; Ross, at 889; Ross, supra no note 142, at 1087. at 1087.
145 145 See Clark, Clark, supra no note 141, at 889; THE FEDERALIST NO. 78 (Alexander Hamilton). at 889; THE FEDERALIST NO. 78 (Alexander Hamilton).
146 146 See, e.g., L.A. Powe, L.A. Powe~~, Jr., Old People and Good Behavior, 12 CONST. COMMENT. 195, 196 (1995) (characterizing life~~
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~~ 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~~
~~ Judicial Inexperience—Life tenure may encourage Presidents to nominate~~
~~younger, less experienced jurists.149~~
 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). Congressional Research Service 16 link to page 19 link to page 19 link to page 18 link to page 20 link to page 18 link to page 19 link to page 19 link to page 20 link to page 19 link to page 19 link to page 20 link to page 19 link to page 19 link to page 19 link to page 20 link to page 19 link to page 19 Congressional Control over the Supreme Court • 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 —If Justices remain on the Court until they die or voluntarily
retire, judicial vacancies may arise at irregular intervals.150 This may cause retire, judicial vacancies may arise at irregular intervals.150 This may cause
uncertainty and political disruptiveness and has given different Presidents uncertainty and political disruptiveness and has given different Presidents
unequal opportunities to appoint Supreme Court Justices.151 unequal opportunities to appoint Supreme Court Justices.151
• Political Unresponsiveness—Life tenure may render Justices unresponsive to the —Life tenure may render Justices unresponsive to the
electorate and prevailing social views.152 electorate and prevailing social views.152
• Judicial Activism—Life tenure may embolden Justices to behave more like —Life tenure may embolden Justices to behave more like
policymakers than neutral arbiters.153 policymakers than neutral arbiters.153
Some who oppose life tenure support term limits for Supreme Court Justices.154 Term limit 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 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, points in the nation’s history, sometimes in response to high-profile judicial decisions.155 To date,
no such proposals have been enacted. no such proposals have been enacted.

~~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 “[l]imiting 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).~~
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 149 149 See, e.g., James E. DiTullio & John B. Schochet, , 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); , 90 VA. L. REV. 1093, 1096 (2004);
Calabresi & Lindgren, Calabresi & Lindgren, supra note note 147, at 836–37. at 836–37.
150 150 See, e.g., Calabresi & Lindgren, , Calabresi & Lindgren, supra no note 147, at 832–33. at 832–33.
151 151 See, e.g., Cramton,, Cramton, supra no note 134, at 1321 (“Because vacancies are uneven over time but sometimes are bunched, 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, one President may make five appointments in a four-year term and others make none.”); DiTullio & Schochet, supra
nonote 149, at 1096. at 1096.
152 152 See, e.g., Michael J. Mazza, , Michael J. Mazza, A New Look at an Old Debate: Life Tenure and the Article III Judge, 39 GONZ. L. REV. , 39 GONZ. L. REV.
131, 156 (2004) (arguing that “131, 156 (2004) (arguing that “~~[r]otating~~rotating offices helps a country’s institutions stay in touch with the people whom they offices helps a country’s institutions stay in touch with the people whom they
are supposed to serve”); Cramton, are supposed to serve”); Cramton, supra no note 134, at 1321 (“at 1321 (“~~[D]ecisions~~Decisions having great moment for the nation’s future 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 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.”). knowledgeable about, the views of those voters who are members of generations other than that of the most elderly.”).
153 153 See, e.g., Calabresi & Lindgren, , Calabresi & Lindgren, supra no note 147, at 823; John O. McGinnis, at 823; John O. McGinnis, Justice Without Justices, 16 CONST. , 16 CONST.
COMMENT. 541, 541–42 (1999); Saikrishna B. Prakash, COMMENT. 541, 541–42 (1999); Saikrishna B. Prakash, America’s Aristocracy, 109 YALE L.J. 541, 544 (1999). , 109 YALE L.J. 541, 544 (1999).
154 154 See, e.g., Calabresi & Lindgren, , Calabresi & Lindgren, supra no note 147, at 772; John Harrison, 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); REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES 373 (2006);
Prakash, Prakash, supra no note 153, at 568; Oliver, at 568; Oliver, supra no note 148, at 800. at 800. See also Supreme Court Term Limits and Regular Supreme Court Term Limits and Regular
Appointments Act of Appointments Act of ~~2020~~2023, H.R. , H.R. ~~8424, 116th~~4423, 118th Cong. ( Cong. (~~2020~~2023). ).
155 155 See, e.g., 103 CONG. REC. S10863 (daily ed. July 3, 1957) (Res. of the Leg. of Ala. to the S. Comm. on the , 103 CONG. REC. S10863 (daily ed. July 3, 1957) (Res. of the Leg. of Ala. to the S. Comm. on the
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link to page 20 link to page 20 link to page 19 link to page 20 link to page 20 link to page 20 link to page 19 link to page 20 link to page 20 link to page 20 link to page 21 link to page 20 link to page 18 link to page 20 link to page 18 link to page 21 ~~Congressional Control over the Supreme Court~~

~~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~~
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). Congressional Research Service 17 link to page 19 link to page 20 link to page 20 link to page 19 link to page 18 link to page 20 link to page 18 link to page 21 link to page 18 link to page 18 Congressional Control over the Supreme Court retired Justices could continue hearing cases on the federal appellate courts, they would no longer 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 rule on Supreme Court cases or would sit on the Supreme Court only to fill temporary
vacancies.160 vacancies.160
Alternatively, some opponents of life tenure advocate a mandatory retirement age for Supreme Alternatively, some opponents of life tenure advocate a mandatory retirement age for Supreme
Court Justices rather than a term limit.161 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 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 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 Supreme Court Justices without amending the Constitution.163 Some commentators dispute that
modifying judicial tenure would require a constitutional amendment.164 Emphasizing that Article modifying judicial tenure would require a constitutional amendment.164 Emphasizing that Article
III states that Justices “shall hold their Offices III states that Justices “shall hold their Offices during good Behaviour” rather than “hold their ” rather than “hold their
Offices Offices for life,” these scholars interpret the Good Behavior Clause as a protection from partisan ,” 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 impeachment rather than a guarantee of life tenure.165 According to these commentators, so long

~~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).~~
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 160 160 See Calabresi & Lindgren, Calabresi & Lindgren, supra no note 147, at 825;at 825; DiTullio & Schochet, DiTullio & Schochet, supra no note 149, at 1120 n.105; Collier, at 1120 n.105; Collier,
supra no note 159, at 423. at 423.
161 161 See, e.g., Garrow, , Garrow, Mental Decrepitude, , supra no note 147, at 1086–87 (proposing “a constitutional amendment at 1086–87 (proposing “a constitutional amendment
mandating compulsory retirement at age seventy-five”). mandating compulsory retirement at age seventy-five”).
162 U.S. CONST. art. III, § 1. 162 U.S. CONST. art. III, § 1.
163 163 See, e.g.,, David J. Garrow, David J. Garrow, Protecting and Enhancing the U.S. Supreme Court, , in REFORMING THE COURT: TERM REFORMING THE COURT: TERM
LIMITS FOR SUPREME COURT JUSTICES 278 (2006) [hereinafter Garrow, LIMITS FOR SUPREME COURT JUSTICES 278 (2006) [hereinafter Garrow, Protecting and Enhancing] (claiming that “the ] (claiming that “the
overwhelming consensus of the critical commentary . . . indicates that only a change in the Constitution itself could 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”). properly convert Justices of the Supreme Court into simply lesser Article III federal judges”). See also, e.g.,, Stras & Stras &
Scott, Scott, Golden Parachute, , supra no note 131, at 1421 (“The Constitution prevents Congress from tinkering with life tenure at 1421 (“The Constitution prevents Congress from tinkering with life tenure
through the ordinary legislative process.”); DiTullio & Schochet, through the ordinary legislative process.”); DiTullio & Schochet, supra no note 149, at 1097 (“Ending life tenure would at 1097 (“Ending life tenure would
require a constitutional amendment.”). require a constitutional amendment.”).
164 164 See, e.g., Cramton, , Cramton, supra no note 134, at 1334; Alan B. Morrison, 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 REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES 209 (2006); Sanford
Levinson, Levinson, Life Tenure and the Supreme Court: What Is To Be Done?, , in REFORMING THE COURT: TERM LIMITS FOR REFORMING THE COURT: TERM LIMITS FOR
SUPREME COURT JUSTICES 377 (2006). SUPREME COURT JUSTICES 377 (2006).
165 165 See, e.g., Levinson, , Levinson, supra no note 164, at 379 (“ at 379 (“~~[N]either~~Neither the text nor the presumed purpose of [Article III] rules out the text nor the presumed purpose of [Article III] rules out
the following argument: The ‘good behaviour’ clause guarantees that judges, the following argument: The ‘good behaviour’ clause guarantees that judges, whatever their term of service, cannot be , cannot be
removed from office for partisan political reasons that would, by definition, threaten the very idea of judicial removed from office for partisan political reasons that would, by definition, threaten the very idea of judicial
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~~as Justices enjoy tenure that is long enough to guarantee their decisional independence, and so~~
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 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 (continued...) Congressional Research Service 18 link to page 18 link to page 21 link to page 18 link to page 19 link to page 16 link to page 18 link to page 21 link to page 20 Congressional Control over the Supreme Court ~~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~~
Court Justices from hearing Supreme Court cases solely because they have served for a specified 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 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 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 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 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 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 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 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 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 Historical sources may also suggest that Congress cannot modify life tenure by statute. For
instance, courts often consult the instance, courts often consult the Federalist Papers when interpreting the Constitution.173 As when interpreting the Constitution.173 As
discussed above, the discussed above, the Federalist Papers describe the Good Behavior Clause as “secur[ing] describe the Good Behavior Clause as “secur[ing]

~~independence. . . . [O]ne 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~~
[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” 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 because “the essential powers and duties of a ‘judge’ include the power to adjudicate disputes that come before the
court”); William Van Alstyne, 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, 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 REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES 416
(2006). (2006).
169 169 See Stras & Scott, Stras & Scott, Golden Parachute, , supra no note 131, at 1404, 1407 (arguing that “ at 1404, 1407 (arguing that “~~[w]hatever~~whatever misbehavior meant at misbehavior meant at
the founding, it did not include serving eighteen years on the bench or turning seventy”). the founding, it did not include serving eighteen years on the bench or turning seventy”).
170 170 See, e.g., Fin. Oversight & Mgmt. Bd. v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1656 (2020) (examining the , 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). Constitution’s structure as an aid to constitutional interpretation).
171 171 See U.S. CONST. art. III, § 1 (“The judicial Power of the United States, shall be vested 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)). as the Congress may from time to time ordain and establish.” (emphasis added)).
172 172 See, e.g.,, Epstein, Epstein, supra no note 168, at 417 (“[Article III’s text] make[s] tolerably clear that the appointment for each 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 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 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 benchposition, and not to the bench ~~. . . .~~.... ”); Stras & Scott, ”); Stras & Scott, Golden Parachute, , supra no note 131, at 1418 (arguing that at 1418 (arguing that
~~“[b]ecause~~ “because the essential powers and duties of a ‘judge’ include the power to adjudicate disputes that come before the 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 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,age would violate the Constitution”); Calabresi & Lindgren, supra no note 147, at 863 (arguing that the Constitution at 863 (arguing that the Constitution
“contemplates a separate office of Supreme Court Justice to which individuals must be appointed for life and not “contemplates a separate office of Supreme Court Justice to which individuals must be appointed for life and not
merely for eighteen 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. Congressional Research Service 19 link to page 17 link to page 18 link to page 18 link to page 20 link to page 20 link to page 19 link to page 25 Congressional Control over the Supreme Court ~~years”).~~
~~173 See, e.g., Evenwel v. Abbott, 136 S. Ct. 1120, 1127 (2016).~~
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~~[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~~
judiciary.177 Thus, existing precedent may counsel against an interpretation of Article III that judiciary.177 Thus, existing precedent may counsel against an interpretation of Article III that
would authorize Congress to affect judicial tenure legislatively. would authorize Congress to affect judicial tenure legislatively.
Some commentators argue that the Supreme Court’s 1803 decision in Some commentators argue that the Supreme Court’s 1803 decision in Stuart v. Laird supports the supports the
constitutionality of a term- or age-limit statute.178 In constitutionality of a term- or age-limit statute.178 In Stuart, the Court upheld a statute that , the Court upheld a statute that
required Supreme Court Justices to “ride circuit”—that is, to spend a portion of each year hearing 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 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 establishment of the lower courts through the Judiciary Act of 1789.179 If Congress can require
Supreme Court Justices to spend a portion of Supreme Court Justices to spend a portion of each year hearing lower court cases, this argument hearing lower court cases, this argument
goes, Congress could require Justices to spend the goes, Congress could require Justices to spend the final years of their judgeships hearing lower hearing lower
court cases exclusively.180 However, court cases exclusively.180 However, Stuart did not hold that Congress could require Justices to sit 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. 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 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 constitutional issues would be to amend the Constitution.181 If Congress proposed such an
amendment, it would face choosing whether to impose a amendment, it would face choosing whether to impose a term limit, an limit, an age limit, or some other limit, or some other
modification to life tenure. The option Congress selects could depend on its policy goals. For 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 instance, if Congress’s primary reason for modifying life tenure is to regularize Supreme Court

~~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.~~
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 177 177 See supra no note 125 and accompanying text. and accompanying text.
178 178 See Cramton, Cramton, supra no note 134, at 1333–34. at 1333–34.
179 179 See Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803). Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803). See generally David R. Stras, 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. , 91 MINN. L. REV. 1710 (2007) (discussing circuit riding); Steven G. Calabresi & David C.
Presser, Presser, Reintroducing Circuit Riding: A Timely Proposal, 90 MINN. L. REV. 1386 (2006) (same); Joshua Glick, , 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). , 24 CARDOZO L. REV. 1753 (2003) (same).
180 180 See Cramton, Cramton, supra no note 134, at 1333–34. at 1333–34.
181 Congress may propose constitutional amendments by a two-thirds vote of both houses of Congress. 181 Congress may propose constitutional amendments by a two-thirds vote of both houses of Congress. See U.S. CONST. U.S. CONST.
art. V (“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this art. V (“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this
Constitution . . . .”). Constitution . . . .”). See also id. (authorizing “the Legislatures of two thirds of the several States” to “call a Convention (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 for proposing amendments”). An amendment proposed in this way becomes effective if three-fourths of the states vote
to ratify it. to ratify it. See id. (providing that amendments “shall be valid to all Intents and Purposes, as Part of this Constitution, (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 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”). 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 (continued...) Congressional Research Service Congressional Research Service

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~~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~~
would create a vacancy every two years.186 While some maintain that shorter terms could 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 encourage judicial restraint, others contend that shorter terms could undermine judicial
independence.187 independence.187
Because the Constitution does not specify how many Justices the Court will have,188 staggered 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 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 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 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 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 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 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 variable terms that change depending on the Court’s size to try to ensure that only one vacancy
arises every two years. arises every two years.
Another question is whether terms should be renewable. While many term limit proposals would 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 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 their terms expire.193 While some commentators claim that the prospect of reappointment would

~~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~~
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 term-limited 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, terms); Henry Paul Monaghan, The Confirmation Process: Law or Politics?, 101 HARV. L. REV. 1202, 1212 (1988) , 101 HARV. L. REV. 1202, 1212 (1988)
(advocating 15–20 year terms); Collier, (advocating 15–20 year terms); Collier, supra no note 159, at 419 (supporting terms of “twelve years or less”). at 419 (supporting terms of “twelve years or less”). Cf.
McGinnis, McGinnis, supra no note 153, at 541, 546 (proposing that “federal judges sitting on the inferior courts of the United 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”). States” be “randomly assigned to the Supreme Court for short periods, such as six months or a year”).
186 186 See supra “The Debate over Life Tenure.”
187 187 Compare, e.g., McGinnis, , McGinnis, supra no note 153, at 542 (arguing that judges who served on “the Supreme Court only for a 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 short time” would be “more likely to treat constitutional issues and other momentous decisions” like “quotidian
matters”), matters”), with, e.g., DiTullio & Schochet, , DiTullio & Schochet, supra no note 149, at 1128–29 (maintaining that “shorter nonrenewable terms 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 (six years, for instance)” could “increase the risk of justices seeking to curry favor with potential post-Court
employers”). employers”).
188 188 See supra “History and Practice on the Size of the Court”; ; see also U.S. CONST. art. III. U.S. CONST. art. III.
189 189 See 28 U.S.C. § 1 (“The Supreme Court of the United States shall consist of a Chief Justice of the United States and 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 . . . .”). eight associate justices . . . .”).
190 190 See supra “History and Practice on the Size of the Court.”
191 191 See DiTullio & Schochet, DiTullio & Schochet, supra no note 149, at 1146 n.178. at 1146 n.178.
192 192 See, e.g., , id. at 1127–28; Powe, at 1127–28; Powe, supra no note 146, at 197. at 197.
193 193 See Prakash, Prakash, supra ~~note~~no te 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). Congressional Research Service 21 link to page 19 link to page 20 link to page 19 link to page 20 link to page 21 link to page 19 link to page 18 Congressional Control over the Supreme Court ~~153,~~ ~~at 568.~~
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~~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 term-~~
~~limited 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.~~
Age Limits by Constitutional Amendment
Establishing a mandatory retirement age for Supreme Court Justices would implicate different Establishing a mandatory retirement age for Supreme Court Justices would implicate different
considerations. For instance, while a mandatory retirement age could mitigate concerns about 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 aging Justices, it would not affect the President’s incentive to appoint younger, less-experienced
nominees.197 nominees.197
Some have argued that amending the Constitution to impose a Some have argued that amending the Constitution to impose a specific maximum age could be maximum age could be
shortsighted, as future medical advances could increase life expectancies or reduce the incidence 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 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 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, 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 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 Court’s composition—a result that could introduce additional political considerations into the
appointment process.199 appointment process.199
Statutory Options
Notwithstanding the constitutional limits discussed above,200 some Members of Congress have 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 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 proposal, the Supreme Court Term Limits and Regular Appointments Act of ~~2021~~2023, would , would ~~have~~
~~allowed~~ allow the President to appoint two Supreme Court Justices during each four-year presidential 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 term, one each “during the first and third years after a year in which there is a Presidential

~~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. 5140, 117th Cong. (2021); H.R. 8500, 117th Cong. (2022).~~
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 197 197 See supra no notes 147, 149, and accompanying text. and accompanying text.
198 198 See, e.g.,, Calabresi & Lindgren, Calabresi & Lindgren, supra no note 147, at 840 (“ at 840 (“~~[I]t~~It is a mistake in general to write numbers into the 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 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 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.”). routinely living to be over 100.”).
199 199 Cf. Harrison, Harrison, supra no note 154, at 372 (arguing that if Congress could modify life tenure by statute, Congress might 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 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). imposing tenure limits when it disapproves of the Court’s membership).
200 200 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. Congressional Research Service Congressional Research Service

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~~election.”201 It would further provide that “[a]fter 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~~
~~2022, 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~~
to perform judicial duties.205 Thus, these scholars advocate encouraging Justices to retire earlier 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 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 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 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 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 by reestablishing the discontinued circuit-riding requirement208 or by reducing how many law
clerks Justices may hire.209 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 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 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 reforms. Often, those reforms would involve changes to the Court’s size or Justices’ tenure in
addition to other changes. addition to other changes.
Congress has never enacted legislation similar to the proposals discussed in this section, and 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 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 any proposal would raise constitutional issues if implemented by ordinary legislation, Congress
could instead seek to amend the Constitution. could instead seek to amend the Constitution.

~~201 H.R. 5140, 117th Cong. (2021).~~
202 Id.
~~203 H.R. 8500, 117th Cong. (2022).~~
~~204 See, e.g., Clark, supra note 141, at 856; Stras & Scott, Golden Parachute, supra note 131, at 1439.~~
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 205 205 See Stras & Scott, Stras & Scott, Golden Parachute, , supra no note 131, at 1422, 1424, 1437. at 1422, 1424, 1437.
206 206 See, e.g., Clark, , Clark, supra no note 141, at 890; Stras & Scott, at 890; Stras & Scott, Golden Parachute, , supra no note 131, at 1402; Kevin T. at 1402; Kevin T.
McGuire, McGuire, Are the Justices Serving Too Long? An Assessment of Tenure on the U.S. Supreme Court, 89 JUDICATURE 8, , 89 JUDICATURE 8,
15 (2005).15 (2005). See also supra “History and Practice” (discussing existing laws governing pensions for retired Justices). (discussing existing laws governing pensions for retired Justices).
207 207 See Stras & Scott, Stras & Scott, Golden Parachute, , supra no note 131, at 1461 (arguing that this proposal would “not require a at 1461 (arguing that this proposal would “not require a
constitutional amendment”). constitutional amendment”).
208 208 See Stras, Stras, supra no note 179, at 1734; Calabresi & Presser, at 1734; Calabresi & Presser, supra note note 179, at 1416. at 1416. See also supra not note 179 and and
accompanying text. accompanying text.
209 209 See Garrow, Garrow, Protecting and Enhancing, , supra no note 163, at 285. at 285.
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~~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~~
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). Congressional Research Service 23 link to page 14 link to page 14 link to page 6 link to page 42 Congressional Control over the Supreme Court proposal might violate that provision by allowing Supreme Court Justices, rather than the 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 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 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 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 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 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, 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 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. been confirmed to serve on the courts of appeals.
The proposal for an eight-Justice Court would base the partisan balance requirement on the 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 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 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 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. 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 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 federal courts might deem a challenge to the requirement to pose a nonjusticiable political
question.216 question.216
In addition, some commentators have noted that partisan balance requirements might undermine 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 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 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 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 appointments.”217 Relatedly, by explicitly associating Justices with a political party, some might

~~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).~~
argue that partisan balance requirements would be inconsistent with the ideal of judges as non-political 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, 214 Epps & Sitaraman, supra no note 92, at 201. at 201.
215 Segall, 215 Segall, supra no note 93, at 554. at 554.
216 216 See Cong. Research Serv., Cong. Research Serv., Congressional Governance as a Political Question, CONSTITUTION ANNOTATED, , CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C1-9-7/ALDE_00001289/ (last visited Jan. 5, 2023). https://constitution.congress.gov/browse/essay/artIII-S2-C1-9-7/ALDE_00001289/ (last visited Jan. 5, 2023).
217 217 SCOTUS Commission Report, , supra no note 28, at 89. In a recent Supreme Court case, a political independent at 89. In a recent Supreme Court case, a political independent
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~~argue that partisan balance requirements would be inconsistent with the ideal of judges as non-~~
~~political 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~~
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. Congressional Research Service 24 link to page 27 link to page 27 link to page 16 link to page 28 link to page 28 link to page 14 link to page 20 link to page 27 Congressional Control over the Supreme Court proposals would seek to reduce the randomness of Supreme Court appointments, depoliticize the 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 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 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 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 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 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 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 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, 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 which are discussed in other sections of this report.224 Legislation that authorized Supreme Court
appointments at regular intervals would likely be found constitutional. 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 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 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 “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 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 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 requirement such that “each panel would be prohibited from having more than five Justices

~~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 Code of Conduct]. As discussed further below, the~~
~~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. 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.~~
~~220 See Balkin, supra note 219.~~
~~221 H.R. 5140, 117th Cong. (2021~~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 ). 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. would not be able to hear Supreme Court cases except to replace Justices who died or retired before their terms expired.
222 H.R. 222 H.R. ~~8500, 117th Cong. (2022~~4423, 118th Cong (2023). ).
223 223 See Balkin, Balkin, supra no note 219.
224 S224 See supra “Changes to Supreme Court Justices’ Tenure”; ; infra “Rotation Between Courts and Supreme Court
Panels.”
225 Epps & Sitaraman, 225 Epps & Sitaraman, supra no note 92, at 181–93. at 181–93.
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~~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~~
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). Congressional Research Service 25 link to page 6 link to page 21 Congressional Control over the Supreme Court interpretation and the other considering constitutional issues.231 The full 14-member Court could 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 “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 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 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 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 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 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 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 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 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, 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 no federal statute or current or historical practice allows federal judges from the lower courts to
sit temporarily on the Supreme Court. sit temporarily on the Supreme Court.
It is doubtful whether legislation purporting to make all federal judges, or even all circuit judges, 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 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 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 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” the line. However, a proposal might be more likely to comply with the “one supreme Court”

~~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.
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, 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-reconstruction-L.A. TIMES (Dec. 20, 2018), https://www.latimes.com/opinion/op-ed/la-oe-ackerman-supreme-court-reconstruction-
20181220-story.html. Among other things, the proposal would also limit service on the Supreme Court to 14 years, 20181220-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. after which Justices would move to the courts of appeals. Id.
232 232 Id.
233 U.S. CONST. art. III, § 1. 233 U.S. CONST. art. III, § 1.
234 234 See Judiciary Act of 1789, ch. 20, § 4, 1 Stat. 73, 74–75. The Supreme Court upheld the circuit riding requirement in 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). Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803).
235 235 See 28 U.S.C. §§ 291–297. 28 U.S.C. §§ 291–297.
236 236 See SCOTUS Commission Report, , supra no note 28, at 85. at 85.
237 See 28 U.S.C. § 46. 238 See supra “Constitutionality of Legislation Modifying Life Tenure.” Congressional Research Service Congressional Research Service

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link to page link to page ~~21 link to page~~ 30 link to page 35 link to page 39 link to page 30 link to page 35 link to page 39 link to page 4342 link to page link to page 4748 link to page 6 link to page 6 link to page 30 link to page 30 Congressional Control over the Supreme Court ~~Congressional Control over the 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~~
emergency motions;239 limiting the Court’s appellate jurisdiction over certain categories of 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 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 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 JusticesSupreme Court decisions;242 imposing new judicial ethics rules for Justices or changing how such rules are enforced;243 or implementing ;243 or implementing
transparency measures, such as allowing photographs or video recordings of Supreme Court transparency measures, such as allowing photographs or video recordings of Supreme Court
proceedings.244 proceedings.244
Motions Practice: the “Shadow Docket”
An area of Supreme Court practice that has gained increased attention in recent years is the 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 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 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. 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 These may include orders granting or denying petitions for writs of certiorari; ruling on

~~237 See 28 U.S.C. § 46.~~
~~238 See supra “Constitutionality of Legislation Modifying Life Tenure.”~~
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 239 239 See infra “Motions Practice: the “Shadow Docket”.’” ’”
240 240 See infra “Limits on Jurisdiction.”
241 241 See infra “Voting Rules and Congressional Override.”
242 242 See id.
243 243 See infra “Judicial Ethics.”
244 244 See infra “Cameras in the Courtroom and Other Transparency Measures.”
245 245 See, e.g., Baude, , Baude, supra no note 29; see also William Baude, William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U , 9 N.Y.U
J. L. & LIBERTY 1 (2015) [hereinafter Baude, J. L. & LIBERTY 1 (2015) [hereinafter Baude, The Shadow Docket]. ].
246 The Supreme Court and Court observers often use the phrase 246 The Supreme Court and Court observers often use the phrase merits decision to refer to any written opinion of the 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. Court following full briefing and argument, even if the case is ultimately decided on technical or procedural grounds.
See, e.g., James Romoser, , James Romoser, Symposium: Shining a Light on the Shadow Docket, SCOTUSBLOG (Oct. 22, 2020), , SCOTUSBLOG (Oct. 22, 2020),
https://www.scotusblog.com/2020/10/symposium-shining-a-light-on-the-shadow-docket/; https://www.scotusblog.com/2020/10/symposium-shining-a-light-on-the-shadow-docket/; see also Supreme Ct. of the Supreme Ct. of the
United States, United States, Briefs on the Merits, https://www.supremecourt.gov/meritsbriefs/meritsbriefs.aspx (last visited Jan. 5, , https://www.supremecourt.gov/meritsbriefs/meritsbriefs.aspx (last visited Jan. 5,
2023). 2023).
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~~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~~
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). Congressional Research Service 27 link to page 30 link to page 31 link to page 30 link to page 31 Congressional Control over the Supreme Court COVID-19 pandemic.250 In many of these cases, a decision to grant or deny a preliminary 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 injunction (or a stay of a preliminary injunction issued by a lower court) may be the last
meaningful ruling in the case.251 meaningful ruling in the case.251
The Supreme Court's procedures in non-merits matters differ significantly from its procedures in 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 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 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 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 non-matters, the Court generally does not hear oral argument and receives limited input from non-
parties.254 Briefs from the parties are generally shorter than merits briefs, may be prepared on a parties.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 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 wait for full briefing before issuing an order.255
The Supreme Court’s decisions also generally take different forms in merits cases and in non- The Supreme Court’s decisions also generally take different forms in merits cases and in non-
merits matters. When issuing a merits decision, the Court usually publishes a written opinion that merits 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 explains the Court’s reasoning and notes which Justice authored the opinion and which Justices

~~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.~~
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 250 250 See CRS Legal Sidebar LSB10637, CRS Legal Sidebar LSB10637, The “Shadow Docket”: The Supreme Court’s Non-Merits Orders, by Joanna R. , by Joanna R.
LampeLampe (2021). .
251 251 See, e.g., AliKhan Testimony, , AliKhan Testimony, supra no note 247, at 3–7. at 3–7.
252 252 See, e.g., , id. at 1. at 1.
253 253 Id.
254 254 See, e.g., , id. at 10 (“Although . at 10 (“Although . . .. stakeholders may do their best to file . stakeholders may do their best to file amicus briefs in emergency litigation . briefs in emergency litigation . . .. , . ,
the accelerated timelines and unpredictable scheduling of these cases make coordinating the accelerated timelines and unpredictable scheduling of these cases make coordinating amicus efforts extremely efforts extremely
challenging. And .challenging. And . .. the Court’s official guidance notes that ‘. the Court’s official guidance notes that ‘~~[t]he~~the filing of filing of amicus briefs in connection with emergency briefs in connection with emergency
applications is strongly discouraged.’ ”) (brackets in original); 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 , 117th Cong. 2
(2021) (statement of Stephen I. Vladeck, Chair in Fed. Cts., Univ. of Tex. Sch. of Law) [hereinafter Vladeck (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-VladeckS-Testimony], https://docs.house.gov/meetings/JU/JU03/20210218/111204/HHRG-117-JU03-Wstate-VladeckS-
20210218-U1.pdf. 20210218-U1.pdf.
255 Vladeck Testimony, 255 Vladeck Testimony, supra no note 254, at 2. at 2.
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~~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~~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-in-per-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 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~~
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. Congressional Research Service 28 link to page 31 link to page 31 link to page 32 link to page 31 link to page 30 link to page 31 link to page 30 link to page 32 link to page 30 Congressional Control over the Supreme Court strategy of parties, particularly the federal government.262 Some observers trace the increase in 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 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 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 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 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 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 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. considers legislation that would affect Supreme Court practices and procedures.

~~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-in-~~
~~per-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.~~
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, 262 Vladeck Testimony, supra no note 254, at 4 (“In contrast to the eight applications for emergency relief filed by the 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 Justice Department between January 2001 and January 2017, the Trump administration filed 41 applications for such
relief over four years.”); relief over four years.”); id. at 5 (noting that many of those applications were successful); at 5 (noting that many of those applications were successful); see also Stephen I. Vladeck, Stephen I. Vladeck,
The Solicitor General and the Shadow Docket, 133 HARV. L. REV. 123 (2019) [hereinafter Vladeck, , 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, 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 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), administrations. @steve_vladeck, TWITTER (July 8, 2022, 3:12 PM),
https://twitter.com/steve_vladeck/status/1545486062579073036. https://twitter.com/steve_vladeck/status/1545486062579073036.
263 Vladeck Testimony, 263 Vladeck Testimony, supra no note 254, at 9–10; Vladeck, at 9–10; Vladeck, Solicitor General, , supra no note 262, at 126. at 126.
264 264 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 , 117th Cong. 4–7 (2021) (statement of Michael T. Morley, Prof., Fla. State
Univ. Coll. of Law) [hereinafter Morley Testimony], Univ. Coll. of Law) [hereinafter Morley Testimony],
https://docs.house.gov/meetings/JU/JU03/20210218/111204/HHRG-117-JU03-Wstate-MorleyM-20210218-U1.pdf. 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 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 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. seek to curb the practice. See Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas, J., concurring); Dep’t of 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 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 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, explain the increase in high-profile non-merits decisions. Vladeck Testimony, supra no note 254, at 8. For additional at 8. For additional
discussion of nationwide injunctions, discussion of nationwide injunctions, see generally Lampe, Lampe, supra no note 249.
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~~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~~
~~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~~

~~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-the-~~
~~precedential-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-20210218-~~
~~U2.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 (“[I]t may not be possible to have a fully prescribed set of procedures for orders.~~
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-the-precedential-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-20210218-U2.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...) Congressional Research Service 29 link to page 30 link to page 32 link to page 31 link to page 30 link to page 30 link to page 31 link to page 30 link to page 30 link to page 31 link to page 30 link to page 32 link to page 32 Congressional Control over the Supreme Court 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 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.”). unexpected is that it is hard to prepare for it in advance.”).
269 AliKhan Testimony, 269 AliKhan Testimony, supra no note 247, at 9. at 9. See also Chen, Chen, supra no note 265, at 703–04 (noting, in the context of at 703–04 (noting, in the context of
summary dispositions, that “summary dispositions, that “~~[w]hen~~when the Supreme Court reverses on the basis of the certiorari papers alone, it does so the Supreme Court reverses on the basis of the certiorari papers alone, it does so
without the benefit of the full adversarial process”). without the benefit of the full adversarial process”).
270 Vladeck Testimony, 270 Vladeck Testimony, supra no note 254, at 14–16; AliKhan Testimony, at 14–16; AliKhan Testimony, supra no note 247, at 9. at 9.
271 AliKhan Testimony, 271 AliKhan Testimony, supra no note 247, at 10–11 (stating that Justice Breyer had “requested that the Court take no 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 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 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., of the Court the opportunity for discussion”) (citing Dunn v. Price, 139 S. Ct. 1312, 1314–15 (2019) (mem.) (Breyer, J.,
dissenting)). dissenting)).
272 272 Id. at 3 (“ at 3 (“~~[P]resently~~Presently, the Supreme Court’s final word on whether the defendant will be executed, or whether his , 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.”); claims will receive full consideration, is often delivered in the middle of the night, while the public is asleep.”); see
also Vladeck Testimony, Vladeck Testimony, supra no note 254, at 13–14. at 13–14.
273 AliKhan Testimony, 273 AliKhan Testimony, supra no note 247, at 11 (noting that “just last week, a ‘mystery’ Justice joined Justices Barrett, 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 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); troubling” because it fails to promote accountability and consistency); see also Baude, Baude, The Shadow Docket, , supra note note
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~~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~~
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-sonia-sotomayor-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. Congressional Research Service 30 link to page 31 link to page 32 link to page 30 link to page 31 link to page 6 link to page 32 link to page 31 Congressional Control over the Supreme Court these concerns,279 although other Justices have defended non-merits orders as an ordinary part of these concerns,279 although other Justices have defended non-merits orders as an ordinary part of
the Court’s decisionmaking process.280 the Court’s decisionmaking process.280
Scholars and legislators have advanced numerous recent proposals that could address the 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 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 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 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 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 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 docket” stems from the federal government’s litigation strategy, the executive branch could also
play a role in reform.282 play a role in reform.282

~~245, at 17 (“[T]he 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-sonia-~~
~~sotomayor-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 (“[P]rocedural 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.~~
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, 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 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 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. 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.” 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). Louisiana v. Am. Rivers, 142 S. Ct. 1347, 1349 (Mem) (2022) (Kagan, J., dissenting). See also Whole Woman’s Health 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) 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)(2019) (Sotomayor, J., dissenting). Cf. Dr. A. v. Hochul, 142 S. Ct. 2569 (Mem) (2022) (Thomas, J., dissenting).
280 280 Miller, 142 S. Ct. at 879 (Kavanaugh, J., concurring); Adam Liptak, , 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-shadow-, N.Y. TIMES (Sept. 30, 2021), https://www.nytimes.com/2021/09/30/us/politics/alito-shadow-
docket-scotus.html. docket-scotus.html.
281 Vladeck Testimony, 281 Vladeck Testimony, supra no note 254, at 17 (“ at 17 (“~~[J]ust~~Just as the rise of the shadow docket has largely been the result of 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 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.”). be pursued is at the Supreme Court itself.”). See also Will Baude Will Baude, Death and the Shadow Docket, THE VOLOKH , THE VOLOKH
CONSPIRACY (Apr. 12, 2019), https://reason.com/volokh/2019/04/12/death-and-the-shadow-docket/; Chen, CONSPIRACY (Apr. 12, 2019), https://reason.com/volokh/2019/04/12/death-and-the-shadow-docket/; Chen, supra note note
265, at 719, 736–53. at 719, 736–53.
282 282 See, e.g., Shoba Wadhia, , Shoba Wadhia, Symposium: From the Travel Ban to the Border Wall, Restrictive Immigration Policies
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~~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~~
Thrive on the Shadow Docket, SCOTUSBLOG (Oct. 27, 2020), https://www.scotusblog.com/2020/10/symposium-from-the-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). Congressional Research Service 31 link to page 32 link to page 6 Congressional Control over the Supreme Court some emergency litigation or establishing standards for the Court to apply in those cases.287 More 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 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 relief288 or enact legislation imposing more stringent standards for when the Supreme Court may
overrule a lower court.289 overrule a lower court.289
Limits on Jurisdiction
Some Court reform proposals would limit the jurisdiction of the Supreme Court, or of courts 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 generally, over certain categories of cases, a practice sometimes called jurisdiction stripping.290 .290
Often, such proposals aim to prevent courts from invalidating actions of state governments or the 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. 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 Some jurisdiction-stripping measures have been enacted and evaluated by courts,292 while others

Thrive on the Shadow Docket, SCOTUSBLOG (Oct. 27, 2020), https://www.scotusblog.com/2020/10/symposium-from-
~~the-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 2021, H.R. 43, 117th Cong. (2021); 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).~~
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 287 287 Id. (suggesting giving the Supreme Court “ (suggesting giving the Supreme Court “mandatory appellate jurisdiction at least over direct appeals” and appellate jurisdiction at least over direct appeals” and
“mak[ing] it easier for death-row prisoners to bring timely method-of-execution challenges “mak[ing] it easier for death-row prisoners to bring timely method-of-execution challenges before an execution date an execution date
has been set”). has been set”).
288 288 Id.
289 289 See Ali Testimony, Ali Testimony, supra no note 268, at 5 (in the context of death penalty litigation, calling for “clear guidance on the 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 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 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)). 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 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, 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, coordinated by Kevin M. Lewis.
(2018). 291 291 See, e.g., , SCOTUS Commission Report, , supra no note 28, at 159 (citing examples and stating, “The goals of at 159 (citing examples and stating, “The goals of
[jurisdiction-stripping] proposals are overwhelmingly substantive in nature—to protect the particular laws in question [jurisdiction-stripping] proposals are overwhelmingly substantive in nature—to protect the particular laws in question
from judicial invalidation.”). from judicial invalidation.”).
292 292 See, e.g., Lauf v. E.G. Shinner & Co., 303 U.S. 323, 329 (1938) (upholding statute depriving federal courts of , 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”). jurisdiction to issue injunctions “in any case involving or growing out of a labor dispute”).
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~~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~~
~~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~~

293 Proposals targeting only the Supreme Court would often deprive the Court of appellate jurisdiction to review state 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, 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 , 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. “prevent the Supreme Court from reviewing the constitutionality or legality” of the Women’s Health Protection Act.
See Kenny Stancil, 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-progressives-, COMMON DREAMS (July 15, 2022), https://www.commondreams.org/news/2022/07/15/house-progressives-
cite-clarence-thomas-argue-scotus-should-lose-jurisdiction-over. cite-clarence-thomas-argue-scotus-should-lose-jurisdiction-over.
294 For discussion of such legislation through the 109th Congress, see Travis Christopher Barham, Note, 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, , 62 WASH. & LEE L. REV. 1139,
1143–47 (2005). 1143–47 (2005).
295 295 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 , 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)). 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 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. scope of federal court jurisdiction. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). , Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
~~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).~~
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Congressional Research Service 32 Congressional Control over the Supreme Court 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 provision by granting the Supreme Court appellate jurisdiction over a subset of the cases included
in the constitutional grant.303 in the constitutional grant.303
In contrast to Congress’s limited power to modify the Supreme Court’s original jurisdiction, 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 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 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 jurisdiction to forestall a possible adverse decision from the Court,305 and the
Supreme Court has upheld multiple legislative limits on its jurisdiction.306 Supreme Court has upheld multiple legislative limits on its jurisdiction.306
While the Exceptions Clause grants Congress significant power over the Supreme Court’s While the Exceptions Clause grants Congress significant power over the Supreme Court’s
appellate jurisdiction, some legislation limiting that jurisdiction might raise constitutional 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 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’ 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 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 arguably would not be meaningfully “supreme” if it were unable to correct other courts’ errors in
~~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~~

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). 303 303 See, e.g., Judiciary Act of 1789, ch. 20, 1 Stat. 73, 80. , Judiciary Act of 1789, ch. 20, 1 Stat. 73, 80.
304 304 See generally Cong. Research Serv., 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 CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C2-6/ALDE_00013618/ (last
visited Jan. 5, 2023). visited Jan. 5, 2023).
305 305 Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). McCardle, 74 U.S. (7 Wall.) 506 (1869).
306 306 See Francis Wright, 105 U.S. (15 Otto) 381, 385–86 (1882); Luckenbuch S.S. Co. v. United States, 272 U.S. 533, 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, 208 537 (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 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 (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). Columbia v. Eslin, 183 U.S. 62 (1901); Patchak v. Zinke, 138 S. Ct. 897 (2018).
307 U.S. CONST. art. III, § 1. 307 U.S. CONST. art. III, § 1.
~~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.’”).~~
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Congressional Research Service 33 link to page 35 Congressional Control over the Supreme Court 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 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 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 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 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 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 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 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 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 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, 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. 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-by- Specific withdrawals of federal court jurisdiction might raise constitutional issues on a case-by-
case basis. For instance, the Supreme Court has held that the Constitution limits Congress’s case 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, 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 the Supreme Court has construed jurisdiction-stripping statutes narrowly to avoid possible
~~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~~

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.). 314 Patchak v. Zinke, 137 S. Ct. 2091 (2017) (mem.).
315 315 See Cong. Research Serv., Cong. Research Serv., Supreme Court Original Jurisdiction, CONSTITUTION ANNOTATED, , CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C2-2/ALDE_00001220/ (last visited Jan. 5, 2023). The 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 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 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. cases might increase the number of cases invoking the Court’s original jurisdiction and burden the Court.
316 316 See Cong. Research Serv., Cong. Research Serv., State Court Jurisdiction to Enforce Federal Law, CONSTITUTION ANNOTATED, , CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S1-6-4/ALDE_00013232/ (last visited Jan. 5, 2023). https://constitution.congress.gov/browse/essay/artIII-S1-6-4/ALDE_00013232/ (last visited Jan. 5, 2023).
317 317 See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008). , Boumediene v. Bush, 553 U.S. 723 (2008).
~~318 Felker v. Turpin, 518 U.S. 651 (1996) (holding that Antiterrorism and Effective Death Penalty Act barred~~ Congressional Research Service 34 link to page 38 link to page 6 link to page 39 Congressional Control over the Supreme 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~~Court 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 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 ~~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) (“[W]hile 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).~~
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powers if it sought to strip state courts of jurisdiction to hear federal constitutional challenges to powers if it sought to strip state courts of jurisdiction to hear federal constitutional challenges to
state laws.322 state laws.322
Beyond the foregoing legal considerations, commentators also debate whether jurisdiction- Beyond the foregoing legal considerations, commentators also debate whether jurisdiction-
stripping proposals would promote or undermine policy goals such as increasing democratic stripping proposals would promote or undermine policy goals such as increasing democratic
accountability, promoting bipartisanship and political stability, protecting constitutional rights, accountability, promoting bipartisanship and political stability, protecting constitutional rights,
and ensuring the uniform application of federal law.323 Given the significant variation among 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-by-proposals, the legal and practical implications of each proposal are best assessed on a case-by-
case basis. case basis.
Jurisdiction stripping is not the only means through which Congress might seek to prevent the 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 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 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, 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 Congress has even changed the Supreme Court’s term in an attempt to prevent it from
considering a constitutional challenge.326 considering a constitutional challenge.326
~~Voting Rules and Congressional Override~~
~~Some~~ 318 Felker v. Turpin, 518 U.S. 651 (1996) (holding that Antiterrorism and Effective Death Penalty Act barred Supreme 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). ~~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~~

322 Dorf, 322 Dorf, supra no note 321, at 4. at 4.
323 323 See SCOTUS Commission Report, , supra no note 28, at 159–62. at 159–62.
324 324 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 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. to litigation, leading a federal judge to deny a motion to enjoin the policy. See Zach Schonfeld, Zach Schonfeld, Judge Denies Student
Debt Cancellation Lawsuit after Education Department Clarifies Plan, HILL (Sept. 29, 2022), , HILL (Sept. 29, 2022),
https://thehill.com/regulation/court-battles/3668006-judge-denies-student-debt-cancellation-lawsuit-after-education-https://thehill.com/regulation/court-battles/3668006-judge-denies-student-debt-cancellation-lawsuit-after-education-
department-clarifies-plan/. Other challenges to the plan have proceeded. department-clarifies-plan/. Other challenges to the plan have proceeded. See CRS Legal Sidebar LSB10876, CRS Legal Sidebar LSB10876, Student
Loan Cancellation Reaches the Supreme Court, by Edward C. Liu and Sean M. Stiff, 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 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 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). COURT IN UNITED STATES HISTORY 222–224 (rev. ed. 1926).
~~327 If an even number of Justices participate in an appeal and the Court divides equally, the decision of the lower court~~
~~is affirmed. This may lead to affirmance of a lower court decision holding a law unconstitutional but is not a binding~~
~~Supreme Court precedent striking down the law.~~
~~328 One scholar has counted more than 60 proposals dating back to 1823. Evan Caminker,~~ ~~Thayerian Deference to~~
~~Congress and Supreme Court Supermajority Rules: Lessons from the Past, 78 IND. L.J. 73, 88 (2003); id. at 117~~
~~(appendix listing proposals).~~
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Congressional Research Service 35 link to page 14 Congressional Control over the Supreme Court 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 supermajority voting rules—for instance, requiring the votes of six of the nine Justices to strike
down government action.329 down government action.329
Other proposals would not alter numerical voting requirements but would instead direct federal Other proposals would not alter numerical voting requirements but would instead direct federal
courts, including the Supreme Court, to apply a deferential standard of review when assessing the courts, including the Supreme Court, to apply a deferential standard of review when assessing the
constitutionality of government actions. For instance, Congress might direct courts not to strike constitutionality of government actions. For instance, Congress might direct courts not to strike
down government action unless it was “clearly unconstitutional.”330 down government action unless it was “clearly unconstitutional.”330
Attempts to impose more deferential standards for judicial review or to change the Court’s voting Attempts to impose more deferential standards for judicial review or to change the Court’s voting
rules may raise both legal and practical questions. One key legal question concerns Congress’s rules may raise both legal and practical questions. One key legal question concerns Congress’s
power to enact such requirements. The Constitution imposes no express limits on Congress’s power to enact such requirements. The Constitution imposes no express limits on Congress’s
ability regulate Supreme Court voting, but it likewise does not expressly grant Congress the ability regulate Supreme Court voting, but it likewise does not expressly grant Congress the
power to do so. Congress might draw the power to impose voting rules or review standards from power to do so. Congress might draw the power to impose voting rules or review standards from
the Exceptions Clause, which provides that the Court’s appellate jurisdiction is subject to “such the Exceptions Clause, which provides that the Court’s appellate jurisdiction is subject to “such
Exceptions, and under such Regulations as the Congress shall make.”331 It is debatable whether Exceptions, and under such Regulations as the Congress shall make.”331 It is debatable whether
voting rules or deferential standards of review constitute regulations of “jurisdiction.” Moreover, voting rules or deferential standards of review constitute regulations of “jurisdiction.” Moreover,
to the extent Congress were to rely on the Exceptions Clause to impose Supreme Court voting to the extent Congress were to rely on the Exceptions Clause to impose Supreme Court voting
rules, it would not be able to reach cases brought under the Court’s original jurisdiction.332 rules, it would not be able to reach cases brought under the Court’s original jurisdiction.332
It is also possible that Congress could rely on the Necessary and Proper Clause to impose voting It is also possible that Congress could rely on the Necessary and Proper Clause to impose voting
rules or deferential standards of review. The Necessary and Proper Clause empowers Congress to rules or deferential standards of review. The Necessary and Proper Clause empowers Congress to
“make all Laws which shall be necessary and proper for carrying into Execution” the powers of “make all Laws which shall be necessary and proper for carrying into Execution” the powers of
~~the federal government.333 Congress has relied on the Clause to regulate the Supreme Court in~~
~~other ways, such as setting the size of the Court and when and where the Court sits.334 However,~~
~~legislation imposing voting rules or deferential standards of review may be distinguishable from~~
~~those types of regulations. Legislation structuring the Court or defining its term helps to “carry[ ]~~
~~into Execution” the judicial power in a way that legislation limiting the Court’s power arguably~~
~~does not.335~~
~~Even if Congress could identify an enumerated power allowing it to enact voting rules or~~
~~deferential standards of review, it is possible the Supreme Court would hold such measures~~
~~unconstitutional on separation-of-powers grounds. Since Marbury v. Madison, the Court has held~~
~~that “[i]t is emphatically the province and duty of the judicial department to say what the law~~
~~is.”336 The Court has struck down legislation that it held improperly directed the courts to decide~~

327 If an even number of Justices participate in an appeal and the Court divides equally, the decision of the lower court is affirmed. This may lead to affirmance of a lower court decision holding a law unconstitutional but is not a binding Supreme Court precedent striking down the law. 328 One scholar has counted more than 60 proposals dating back to 1823. Evan Caminker, Thayerian Deference to Congress and Supreme Court Supermajority Rules: Lessons from the Past, 78 IND. L.J. 73, 88 (2003); id. at 117 (appendix listing proposals). 329 329 E.g., Epps & Sitaraman, , Epps & Sitaraman, supra no note 92 at 182, Ryan D. Doerfler & Samuel Moyn, at 182, Ryan D. Doerfler & Samuel Moyn, Democratizing the Supreme
Court, 109 CAL. L. REV. 1703 (2021). , 109 CAL. L. REV. 1703 (2021).
330 330 E.g., James B. Thayer, , James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, , 7 HARV. L. REV. 129,
144 (1893). 144 (1893).
331 U.S. CONST. art. III, § 2, cl. 2. 331 U.S. CONST. art. III, § 2, cl. 2.
332 332 See Cong. Research Serv., Cong. Research Serv., Supreme Court Original Jurisdiction, CONSTITUTION ANNOTATED, , CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C2-2/ALDE_00001220/ (last visited Jan. 5, 2023). One https://constitution.congress.gov/browse/essay/artIII-S2-C2-2/ALDE_00001220/ (last visited Jan. 5, 2023). One
proposal related to voting rules would have excepted cases subject to Supreme Court original jurisdiction. proposal related to voting rules would have excepted cases subject to Supreme Court original jurisdiction. See S. 4483, S. 4483,
67th Cong. (1923). 67th Cong. (1923).
~~333 U.S. CONST. art. I, § 8, cl. 18.~~
~~334 See, e.g., 28 U.S.C. §§ 1–2.~~
~~335 Congress might also assert that limits on judicial review were necessary and proper to effectuate Congress’s own~~
~~power. It is unclear whether the Court would accept such an argument if Congress sought to effectuate its own power~~
~~by limiting the Court’s ability to exercise its constitutional function. See SCOTUS Commission Report, supra note 28,~~
~~at 180.~~
~~336 5 U.S. (1 Cranch) 137, 177 (1803).~~
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~~cases~~ Congressional Research Service 36 link to page 6 link to page 6 Congressional Control over the Supreme Court the federal government.333 Congress has relied on the Clause to regulate the Supreme Court in other ways, such as setting the size of the Court and when and where the Court sits.334 However, legislation imposing voting rules or deferential standards of review may be distinguishable from those types of regulations. Legislation structuring the Court or defining its term helps to “carry[ ] into Execution” the judicial power in a way that legislation limiting the Court’s power arguably does not.335 Even if Congress could identify an enumerated power allowing it to enact voting rules or deferential standards of review, it is possible the Supreme Court would hold such measures unconstitutional on separation-of-powers grounds. Since Marbury v. Madison, the Court has held that “it is emphatically the province and duty of the judicial department to say what the law is.”336 The Court has struck down legislation that it held improperly directed the courts to decide cases in certain ways,337 as well as legislation in which Congress interpreted constitutional rights in certain ways,337 as well as legislation in which Congress interpreted constitutional rights
differently from how the Court interpreted them.338 The Court might apply these and similar differently from how the Court interpreted them.338 The Court might apply these and similar
precedents to hold that legislation regulating Supreme Court voting improperly intrudes on the precedents to hold that legislation regulating Supreme Court voting improperly intrudes on the
Court’s authority under Article III. There is substantial precedent for Congress enacting Court’s authority under Article III. There is substantial precedent for Congress enacting
legislation that establishes a standard of review for the courts to apply in particular types of cases, legislation that establishes a standard of review for the courts to apply in particular types of cases,
including review that is deferential to the findings or actions of executive branch agencies and including review that is deferential to the findings or actions of executive branch agencies and
state courts.339 However, prior legislation applied only in limited contexts, generally to cases state courts.339 However, prior legislation applied only in limited contexts, generally to cases
based on statutory rather than constitutional rights. That type of law may raise fewer based on statutory rather than constitutional rights. That type of law may raise fewer
constitutional concerns than legislation that would limit the Court’s review more generally. constitutional concerns than legislation that would limit the Court’s review more generally.
As a practical matter, it appears supermajority voting rules might decrease the likelihood that the As a practical matter, it appears supermajority voting rules might decrease the likelihood that the
Supreme Court would strike down actions of the political branches or the states. Although 5-4 Supreme Court would strike down actions of the political branches or the states. Although 5-4
decisions constitute a minority of the Court’s rulings, a supermajority voting rule could be decisions constitute a minority of the Court’s rulings, a supermajority voting rule could be
consequential during particular periods, or for particular kinds of cases, when the Court is closely consequential during particular periods, or for particular kinds of cases, when the Court is closely
divided.340 Deferential review standards might also limit how often the Court would strike down divided.340 Deferential review standards might also limit how often the Court would strike down
government actions, though it would depend on how Justices applied the standards. government actions, though it would depend on how Justices applied the standards.
In considering the possible effects of a voting rule or deferential standard, the Presidential In considering the possible effects of a voting rule or deferential standard, the Presidential
Commission on the Supreme Court noted that rules that apply only to the Supreme Court might Commission on the Supreme Court noted that rules that apply only to the Supreme Court might
undermine the Court’s ability to oversee state courts and lower federal courts. For instance, a undermine the Court’s ability to oversee state courts and lower federal courts. For instance, a
~~state court or federal appeals court might hold that a certain action was constitutional, but five~~
~~Justices of the Supreme Court might disagree. Under a supermajority voting rule, the lower~~
~~court’s decision would presumably stand, even though a majority of the highest court believed it~~
~~to be incorrect. This could undermine the Court’s authority and create confusion as to how other~~
~~lower courts should apply the law.341 Some commentators also worry that this arrangement would~~
~~improperly limit the Court’s ability to protect constitutional rights.342 Supporters of deferential~~
~~voting standards counter that those standards would support judicial legitimacy by fostering~~
~~consensus on the Court and limiting judicial interference in political matters except when clearly~~
~~necessary.343~~
~~With respect to overriding Supreme Court decisions, it is important to note that Congress already~~
~~has the power to override Supreme Court decisions involving statutory interpretation.344 If~~

state 333 U.S. CONST. art. I, § 8, cl. 18. 334 See, e.g., 28 U.S.C. §§ 1–2. 335 Congress might also assert that limits on judicial review were necessary and proper to effectuate Congress’s own power. It is unclear whether the Court would accept such an argument if Congress sought to effectuate its own power by limiting the Court’s ability to exercise its constitutional function. See SCOTUS Commission Report, supra note 28, at 180. 336 5 U.S. (1 Cranch) 137, 177 (1803). 337 United States v. Klein, 80 U.S. (13 Wall.) 128 (1871); 337 United States v. Klein, 80 U.S. (13 Wall.) 128 (1871); see also Bank Markazi v. Peterson, 578 U.S. 212, 231 (2016) Bank Markazi v. Peterson, 578 U.S. 212, 231 (2016)
(Congress may not enact legislation “that directs, in ‘Smith v. Jones,’ ‘Smith wins.’”). (Congress may not enact legislation “that directs, in ‘Smith v. Jones,’ ‘Smith wins.’”).
338 City of Boerne v. Flores, 521 U.S. 507 (1997). 338 City of Boerne v. Flores, 521 U.S. 507 (1997).
339 For instance, the Administrative Procedure Act directs courts to set aside agency action that is “arbitrary, capricious, 339 For instance, the Administrative Procedure Act directs courts to set aside agency action that is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), and the Antiterrorism and an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), and the Antiterrorism and
Effective Death Penalty Act of 1996 allows a district court to issue a writ of habeas corpus on behalf of a person in Effective Death Penalty Act of 1996 allows a district court to issue a writ of habeas corpus on behalf of a person in
state custody only if the underlying state court decision was “contrary to, or involved an unreasonable application of, state custody only if the underlying state court decision was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States” or “based on an clearly established Federal law, as determined by the Supreme Court of the United States” or “based on an
unreasonable determination of the facts in light of the evidence presented,” 28 U.S.C. § 2254(d). unreasonable determination of the facts in light of the evidence presented,” 28 U.S.C. § 2254(d).
340 340 See Angie Gou, Ellena Erskine, & James Romoser, Angie Gou, Ellena Erskine, & James Romoser, STAT PACK for the Supreme Court’s 2021–22 Term 9, 9,
SCOTUSBLOG (July 1, 2022), https://www.scotusblog.com/wp-content/uploads/2022/07/SCOTUSblog-Final-STAT-SCOTUSBLOG (July 1, 2022), https://www.scotusblog.com/wp-content/uploads/2022/07/SCOTUSblog-Final-STAT-
PACK-OT2021.pdf (last accessed Oct. 13, 2022); PACK-OT2021.pdf (last accessed Oct. 13, 2022); but see SCOTUS Commission Report, , supra no note 28, at 176 (citing at 176 (citing
recent examples of high-profile 5-4 decisions). recent examples of high-profile 5-4 decisions).
~~341 See SCOTUS Commission Report, supra note 28, at 174–75.~~
~~342 Id. at 173.~~
~~343 See, e.g., Jed Handelsman Shugerman, A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court,~~
~~37 GA. L. REV. 893, 932 (2003); John O. McGinnis & Michael B. Rappaport,~~ ~~Supermajority Rules as a Constitutional~~
~~Solution, 40 WM. & MARY L. REV. 365, 437–38 (1999).~~
~~344 See, e.g., Ganesh Sitaraman, How to Rein In an All-Too-Powerful Supreme Court, ATL. (Nov. 16, 2019),~~
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Congressional Research Service 37 link to page 6 Congressional Control over the Supreme Court court or federal appeals court might hold that a certain action was constitutional, but five Justices of the Supreme Court might disagree. Under a supermajority voting rule, the lower court’s decision would presumably stand, even though a majority of the highest court believed it to be incorrect. This could undermine the Court’s authority and create confusion as to how other lower courts should apply the law.341 Some commentators also worry that this arrangement would improperly limit the Court’s ability to protect constitutional rights.342 Supporters of deferential voting standards counter that those standards would support judicial legitimacy by fostering consensus on the Court and limiting judicial interference in political matters except when clearly necessary.343 With respect to overriding Supreme Court decisions, it is important to note that Congress already has the power to override Supreme Court decisions involving statutory interpretation.344 If Congress disagrees with the Court’s interpretation of a federal statute, it can amend the law to Congress disagrees with the Court’s interpretation of a federal statute, it can amend the law to
impose its preferred interpretation so long as that interpretation is constitutional.345 Thus, most impose its preferred interpretation so long as that interpretation is constitutional.345 Thus, most
proposals to expand the override of judicial decisions would allow Congress or another entity to proposals to expand the override of judicial decisions would allow Congress or another entity to
reject the Supreme Court’s reject the Supreme Court’s constitutional rulings. rulings.
Like supermajority voting requirements, proposals that would allow other entities to override Like supermajority voting requirements, proposals that would allow other entities to override
Supreme Court decisions have a long history. A number of proposals would allow Congress to Supreme Court decisions have a long history. A number of proposals would allow Congress to
override judicial decisions. For instance, the 1924 Progressive Party platform called for “a override judicial decisions. For instance, the 1924 Progressive Party platform called for “a
constitutional amendment providing that Congress may by enacting a statute make it effective constitutional amendment providing that Congress may by enacting a statute make it effective
over a judicial veto.”346 By contrast, some proposals would grant the override power to other over a judicial veto.”346 By contrast, some proposals would grant the override power to other
entities. For example, following the Supreme Court’s decision in entities. For example, following the Supreme Court’s decision in Brown v. Board of Education,347 ,347
legislators proposed a constitutional amendment that would have granted the Senate the authority legislators proposed a constitutional amendment that would have granted the Senate the authority
to review Supreme Court decisions in cases “where questions of the powers reserved to the to review Supreme Court decisions in cases “where questions of the powers reserved to the
States, or the people, are either directly or indirectly involved and decided, and a State is a party States, or the people, are either directly or indirectly involved and decided, and a State is a party
or anywise interested in such question.”348 Separate contemporaneous proposals would have or anywise interested in such question.”348 Separate contemporaneous proposals would have
allowed a “Court of the Union” composed of state supreme court judges to review certain allowed a “Court of the Union” composed of state supreme court judges to review certain
decisions of the federal Supreme Court349 or authorized the states themselves to overrule Supreme decisions of the federal Supreme Court349 or authorized the states themselves to overrule Supreme
Court decisions limiting states’ rights.350 Court decisions limiting states’ rights.350
~~Any proposal that would allow Congress to directly override constitutional decisions of the~~
~~Supreme Court would likely require a constitutional amendment. If Congress attempted to enact~~
~~such reforms through ordinary legislation, it is likely that the Court would strike them down as~~
~~congressional usurpation of the judicial role. Consequently, most advocates for legislative~~
~~override proposals have suggested that they be imposed by constitutional amendment.351~~
~~As an alternative to generally authorizing congressional review of the Supreme Court’s~~
~~constitutional decisions, Congress could seek to respond to such decisions on a case-by-case~~
~~basis. While Congress cannot reject the Court’s constitutional interpretations, it is sometimes~~
~~possible to enact new substantive legislation to replace a prior law that was held unconstitutional~~
~~or to protect a right that the Court has held is not enshrined in the Constitution.352~~

341 See SCOTUS Commission Report, supra note 28, at 174–75. 342 Id. at 173. 343 See, e.g., Jed Handelsman Shugerman, A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court, 37 GA. L. REV. 893, 932 (2003); John O. McGinnis & Michael B. Rappaport, Supermajority Rules as a Constitutional Solution, 40 WM. & MARY L. REV. 365, 437–38 (1999). 344 See, e.g., Ganesh Sitaraman, How to Rein In an All-Too-Powerful Supreme Court, ATL. (Nov. 16, 2019), https://www.theatlantic.com/ideas/archive/2019/11/congressional-review-act-court/601924/. https://www.theatlantic.com/ideas/archive/2019/11/congressional-review-act-court/601924/.
345 345 Eg., Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (codified at 42 U.S.C. § 2000e(k)); ADA , Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (codified at 42 U.S.C. § 2000e(k)); ADA
Amendments Act of 2008, Pub. L. No. 110-325, § 2(b), 133 Stat. 3553, 3554 (codified as amended at 42 U.S.C. Amendments Act of 2008, Pub. L. No. 110-325, § 2(b), 133 Stat. 3553, 3554 (codified as amended at 42 U.S.C.
§ 12101 et seq.). This approach is subject to the usual political limitations on enacting legislation. Moreover, if the § 12101 et seq.). This approach is subject to the usual political limitations on enacting legislation. Moreover, if the
Court decision issues in a later Congress, any legislation in response may reflect the intent of the amending Congress Court decision issues in a later Congress, any legislation in response may reflect the intent of the amending Congress
rather than the Congress that passed the original legislation. rather than the Congress that passed the original legislation.
346 346 See, e.g., , Progressive Party Platform of 1924, , Am. Presidency Project (Nov. 4, 1924), (Nov. 4, 1924),
https://www.presidency.ucsb.edu/documents/progressive-party-platform-1924; S.J. Res. 80, 75th Cong. (1937). https://www.presidency.ucsb.edu/documents/progressive-party-platform-1924; S.J. Res. 80, 75th Cong. (1937). See
also Robert H. Bork, Robert H. Bork, The End of Democracy? Our Judicial Oligarchy, FIRST THINGS (Nov. 1996), , FIRST THINGS (Nov. 1996),
https://www.firstthings.com/article/1996/11/the-end-of-democracy-our-judicial-oligarchy. https://www.firstthings.com/article/1996/11/the-end-of-democracy-our-judicial-oligarchy.
347 347 U.S. 483 (1954). 347 347 U.S. 483 (1954).
348 103 CONG. REC. S12787 (daily ed. July 26, 1957) (Res. of the Leg. of Fla. to the S. Comm. on the Judiciary). 348 103 CONG. REC. S12787 (daily ed. July 26, 1957) (Res. of the Leg. of Fla. to the S. Comm. on the Judiciary).
349 109 CONG. REC. S2071–72 (daily ed. Feb. 11, 1963) (Res. of the Leg. of Fla. to the S. Comm. on the Judiciary). 349 109 CONG. REC. S2071–72 (daily ed. Feb. 11, 1963) (Res. of the Leg. of Fla. to the S. Comm. on the Judiciary).
350 107 CONG. REC. S2154 (daily ed. Feb. 16, 1961) (Res. of the Leg. of Ark. to the S. Comm. on the Judiciary). 350 107 CONG. REC. S2154 (daily ed. Feb. 16, 1961) (Res. of the Leg. of Ark. to the S. Comm. on the Judiciary). Cf.
~~WILLIAM G. ROSS, A MUTED FURY: POPULISTS, PROGRESSIVES, AND LABOR UNIONS CONFRONT THE COURTS, 1890–~~
~~1937, 130–54 (2014) (discussing proposal of former President Theodore Roosevelt to allow citizens to recall state~~
~~judicial decisions invalidating a statute under either the federal or state constitutions).~~
~~351 See, e.g., Progressive Party Platform of 1924, Am. Presidency Project (Nov. 4, 1924),~~
~~https://www.presidency.ucsb.edu/documents/progressive-party-platform-1924; S.J. Res. 80, 75th Cong. (1937); Bork,~~
supra note 346.
352 See, e.g., CRS Legal Sidebar LSB10768, Supreme Court Rules No Constitutional Right to Abortion in Dobbs v.
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(continued...) Congressional Research Service 38 link to page 41 link to page 41 Congressional Control over the Supreme Court Any proposal that would allow Congress to directly override constitutional decisions of the Supreme Court would likely require a constitutional amendment. If Congress attempted to enact such reforms through ordinary legislation, it is likely that the Court would strike them down as congressional usurpation of the judicial role. Consequently, most advocates for legislative override proposals have suggested that they be imposed by constitutional amendment.351 As an alternative to generally authorizing congressional review of the Supreme Court’s constitutional decisions, Congress could seek to respond to such decisions on a case-by-case basis. While Congress cannot reject the Court’s constitutional interpretations, it is sometimes possible to enact new substantive legislation to replace a prior law that was held unconstitutional or to protect a right that the Court has held is not enshrined in the Constitution.352
One recent proposal, the Supreme Court Review Act of 2022, would have established special One recent proposal, the Supreme Court Review Act of 2022, would have established special
procedures for Congress to respond to Supreme Court decisions.353 The bill would have required procedures for Congress to respond to Supreme Court decisions.353 The bill would have required
the Comptroller General of the United States to provide notice to Congress of certain Supreme the Comptroller General of the United States to provide notice to Congress of certain Supreme
Court decisions, including decisions interpreting federal statutes and any decision that “interprets Court decisions, including decisions interpreting federal statutes and any decision that “interprets
or reinterprets the Constitution of the United States in a manner that diminishes an individual or reinterprets the Constitution of the United States in a manner that diminishes an individual
right or privilege that is or was previously protected by the Constitution of the United States.”354 right or privilege that is or was previously protected by the Constitution of the United States.”354
The bill would then have provided expedited procedures for Congress to amend federal statutory The bill would then have provided expedited procedures for Congress to amend federal statutory
law “in a manner that is reasonably relevant to the covered Supreme Court decision.”355 It would law “in a manner that is reasonably relevant to the covered Supreme Court decision.”355 It would
not have provided for direct legislative override of Supreme Court constitutional decisions and not have provided for direct legislative override of Supreme Court constitutional decisions and
would have thus avoided possible constitutional questions related to legislation allowing for such would have thus avoided possible constitutional questions related to legislation allowing for such
override. override.
Judicial Ethics
Another reform proposal that has attracted attention in recent years involves Another reform proposal that has attracted attention in recent years involves ~~imposing new~~
the judicial ethics rules judicial ethics rules onthat apply to Supreme Court Justices. For decades, Supreme Court Justices were the only federal judges not subject to a formal code of conduct. On November 13, 2023, the current members of the Court adopted the Code of Conduct for Justices of the Supreme Court of the United States (Justices’ Code of Conduct), a set of ethical canons and accompanying commentary that are to guide Justices in the performance of their duties.356 The adoption of the Justices’ Code of Conduct represented the first time that the Court implemented and published a written code of conduct for Justices. Yet, even with the Justices’ formal adoption of an ethical code, certain considerations for Congress related to Supreme Court ethics remain. WILLIAM G. ROSS, A MUTED FURY: POPULISTS, PROGRESSIVES, AND LABOR UNIONS CONFRONT THE COURTS, 1890–1937, 130–54 (2014) (discussing proposal of former President Theodore Roosevelt to allow citizens to recall state judicial decisions invalidating a statute under either the federal or state constitutions). 351 See, e.g., Progressive Party Platform of 1924, Am. Presidency Project (Nov. 4, 1924), https://www.presidency.ucsb.edu/documents/progressive-party-platform-1924; S.J. Res. 80, 75th Cong. (1937); Bork, supra note 346. 352 See, e.g., CRS Legal Sidebar LSB10768, Supreme Court Rules No Constitutional Right to Abortion in Dobbs v. Jackson Women’s Health Organization, by Jon O. Shimabukuro (2022) ( ~~Supreme Court Justices.~~
~~The Judicial Conference of the United States (Judicial Conference) has adopted a set of ethical~~
~~canons known as the Code of Conduct for United States Judges (the Code) in order to promote~~
~~public confidence in the integrity, independence, and impartiality of the federal judiciary.356 The~~
~~Code is not a binding set of laws but rather a set of “aspirational rules” by which federal judges~~
~~should strive to abide.357 The Code contemplates the possibility of discipline for judges who~~
~~violate its tenets but also states that “[n]ot every violation of the Code should lead to disciplinary~~
~~action.”358~~

~~Jackson Women’s Health Organization, by Jon O. Shimabukuro (~~discussing legislation that would support abortion discussing legislation that would support abortion
access after the Supreme Court held there is no constitutional right to abortion). access after the Supreme Court held there is no constitutional right to abortion).
353 S. 4681, 117th Cong. (2022). 353 S. 4681, 117th Cong. (2022). See also Sitaraman, Sitaraman, supra no note 344 (advocating for a “Congressional Review Act for (advocating for a “Congressional Review Act for
the Supreme Court” that “would apply to Court decisions that interpret legislation”). the Supreme Court” that “would apply to Court decisions that interpret legislation”).
354 354 Id.
355 355 Id.
356 356 U.S. SUP. CT., CODE OF CONDUCT FOR JUSTICES OF THE SUPREME COURT OF THE UNITED STATES (2023), https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf [hereinafter JUSTICES’ CODE OF CONDUCT]. Congressional Research Service 39 Congressional Control over the Supreme Court Since 1973, judges on the lower federal courts have been subject to a set of ethical canons now known as the Code of Conduct for United States Judges (Judges’ Code of Conduct).357 The Judicial Conference of the United States (Judicial Conference), the national policymaking body for the U.S. courts, adopted the Judges’ Code of Conduct to promote public confidence in the integrity, independence, and impartiality of the federal judiciary.358 The Judges’ Code of Conduct is not a binding set of laws but rather a set of “aspirational rules” by which federal judges should strive to abide.359 The Code contains no enforcement mechanism of its own and it “is not designed or intended as a basis for civil liability or criminal prosecution.”360 However, some violations of the Judges’ Code of Conduct may be grounds for discipline under a federal statute known as the Judicial Conduct and Disability Act of 1980.361 The Judges’ Code of Conduct contemplates the possibility of discipline under the Act for judges who violate its tenets but also states that “not every violation of the Code should lead to disciplinary action.”362 Under the Act, a judge who engages in misconduct may be publicly or privately reprimanded, temporarily barred from hearing new cases, disqualified from an existing case, or referred for possible impeachment.363 Formal discipline under the Act is rare.364 Neither the Judges’ Code of Conduct nor the Judicial Conduct and Disability Act applies to the Justices of the Supreme Court.365 Until November 2023, there was no single body of ethical canons with which the nation’s highest court was required to comply when discharging its judicial duties. The absence of such a body of canons did not mean that Supreme Court Justices were unconstrained by ethical rules and guidelines, however. Prior to November 2023, Justices repeatedly stated that they would “consult the [Judges’] Code of Conduct” and other authorities “to resolve specific ethical issues.”366 In addition, several federal statutes impose other ethical requirements on the Justices. For example, 28 U.S.C. § 455 requires federal judges, including Supreme Court Justices, to recuse themselves from particular cases under specified 357 See generally, JUDGES’ CODE OF CONDUCT. 358 See United States v. Microsoft Corp., 253 F.3d 34, 111 (D.C. Cir. 2001). The Judicial Conference of the United States is composed of “the~~See~~ ~~United States v. Microsoft Corp., 253 F.3d 34, 111 (D.C. Cir. 2001). The Judicial Conference of the United~~
~~States is composed of “[t]he~~ Chief Justice of the United States[,] . Chief Justice of the United States[,] . . .. the chief judge of each judicial circuit, the chief . the chief judge of each judicial circuit, the chief
judge of the Court of International Trade, and a district judge from each judicial circuit.” 28 U.S.C. § 331. Among other judge of the Court of International Trade, and a district judge from each judicial circuit.” 28 U.S.C. § 331. Among other
things, the Code instructs federal judges to uphold the integrity and independence of the judiciary; avoid not only things, the Code instructs federal judges to uphold the integrity and independence of the judiciary; avoid not only
impropriety but the appearance thereof; perform the duties of their offices fairly, impartially, and diligently; avoid impropriety but the appearance thereof; perform the duties of their offices fairly, impartially, and diligently; avoid
extrajudicial activities that would be inconsistent with the obligations of judicial office; and refrain from political extrajudicial activities that would be inconsistent with the obligations of judicial office; and refrain from political
activity. activity.
~~357~~359 White v. Nat’l Football League, 585 F.3d 1129, 1140 (8th Cir. 2009). White v. Nat’l Football League, 585 F.3d 1129, 1140 (8th Cir. 2009). See also In re Charges of Judicial Misconduct, Charges of Judicial Misconduct,
769 F.3d 762, 766 (D.C. Cir. 2014) (mem769 F.3d 762, 766 (D.C. Cir. 2014) (mem.) (noting that the “main precepts” of the Code of Conduct “are highly general; ) (noting that the “main precepts” of the Code of Conduct “are highly general;
the Code is in many potential applications aspirational rather than a set of disciplinary rules”) (quoting the Code is in many potential applications aspirational rather than a set of disciplinary rules”) (quoting ~~Judicial~~
~~Conference of the United States, Rules for Judicial-Conduct and Judicial-Disability Proceedings~~JUD. CONF. OF THE U.S., RULES FOR JUDICIAL-CONDUCT AND JUDICIAL-DISABILITY PROCEEDINGS, Rule 3 cmt. (2008)). , Rule 3 cmt. (2008)).
~~358~~ ~~Code of~~360 JUDGES’ CODE OF Conduct ~~Canon 1 cmt. Judges who fail to abide by the Code risk judicial discipline (such as being~~
~~temporarily barred from hearing new cases) or disqualification from an existing case. Neither of those remedies is often~~
~~granted.~~ Canon 1 cmt. 361 28 U.S.C. §§ 332(d)(1), 351–364. 362 JUDGES’ CODE OF Conduct Canon 1 cmt. 363 28 U.S.C. § 354. E.g., Microsoft Corp., 253 F.3d at 111. 364 Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int’l Union, 332 F. Supp. 2d 667, 671 Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int’l Union, 332 F. Supp. 2d 667, 671
(S.D.N.Y. 2004); Gordon Bermant & Russell R. Wheeler, (S.D.N.Y. 2004); Gordon Bermant & Russell R. Wheeler, Federal Judges and the Judicial Branch: Their
Independence and Accountability, 46 MERCER L. REV. 835, 844 (1995); Jeffrey W. Stempel, , 46 MERCER L. REV. 835, 844 (1995); Jeffrey W. Stempel, Playing Forty Questions:
Responding to Justice Roberts’s Concerns in Caperton and Some Tentative Answers About Operationalizing Judicial
Recusal and Due Process, 39 SW. L. REV. 1, 28 n.117 (2009). 365 JUDGES’ CODE OF CONDUCT Introduction; 28 U.S.C. § 351. 366 E.g., JOHN G. ROBERTS JR., U.S. SUP. CT., 2011 YEAR-END REPORT ON THE FEDERAL JUDICIARY 4–5 (2011), https://www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf. Congressional Research Service 40 Congressional Control over the Supreme Court circumstances, such as when the judge or Justice “has a personal bias or prejudice concerning a party” or “a financial interest in the subject matter in controversy.”367 Congress has also directed Supreme Court Justices to comply with certain financial disclosure requirements that apply to federal officials generally.368 In addition, since 1991, the Court has voluntarily resolved to comply with certain Judicial Conference regulations pertaining to outside earned income, outside employment, honoraria, and the receipt of gifts by judicial officers, even though those regulations would otherwise not~~Due Process, 39 SW. L. REV. 1, 28 n.117 (2009).~~
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~~By its explicit terms, the Code governs only the judges of the lower federal courts.359 It does not~~
~~apply to Supreme Court Justices, nor has the Supreme Court formally promulgated its own ethical~~
~~code. As a result, no single body of ethical canons binds the nation’s highest court at present.~~
~~The absence of such a body of rules does not mean that Supreme Court Justices are wholly~~
~~unconstrained by ethical norms and guidelines. Even though the Code does not formally~~ apply to apply to
~~Supreme Court Justices, the Justices have indicated that they nonetheless “consult the Code of~~
~~Conduct” and other authorities “to resolve specific ethical issues.”360 Moreover, although~~
~~Congress has not enacted legislation mandating the adoption of a Supreme Court code of conduct,~~
~~several statutes impose various ethical requirements on the Justices. For example, 28 U.S.C.~~
~~§ 455 requires federal judges, including Supreme Court Justices, to recuse themselves from~~
~~particular cases under specified circumstances, such as when the judge or Justice “has a personal~~
~~bias or prejudice concerning a party” or “a financial interest in the subject matter in~~
~~controversy.”361 Congress has also directed Supreme Court Justices to comply with certain~~
~~financial disclosure requirements that apply to federal officials generally.362 In addition, the Court~~
~~has voluntarily resolved to comply with certain Judicial Conference regulations pertaining to the~~
~~receipt of gifts by judicial officers, even though those regulations would otherwise not apply to~~
~~Supreme Court Justices.363~~
~~Some observers have called for Supreme Court justices to be subject the same code of ethics that~~
~~other federal judges are required to follow. Those calls gained increased prominence in March~~
~~2022 following reports that Virginia Thomas, wife of Associate Justice Clarence Thomas, sent~~
~~text messages in January 2021 to then-White House Chief of Staff Mark Meadows encouraging~~
~~him to contest the result of the 2020 presidential election.364 In response to those reports, some~~
~~debated whether Justice Thomas should recuse himself from certain cases voluntarily,365 while~~
~~others more broadly discussed whether Congress should—or even could—impose a code of~~
~~ethics on the Supreme Court.366~~
~~In response to calls to mandate a code of ethics for the Supreme Court, some Members of the~~
~~117th Congress introduced bills known as the For the People Act367 and the Supreme Court Ethics~~

~~359 Code of Conduct Introduction.~~
~~360 JOHN G. ROBERTS JR., U.S. SUP. CT., 2011 YEAR-END REPORT ON THE FEDERAL JUDICIARY 5~~
~~(2011), https://www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf.~~
~~361 28 U.S.C. § 455(b).~~
~~362 See Ethics in Government Act of 1978, Pub. L. No. 95-521, tit. I, § 101, 92 Stat. 1824.~~
~~363 CRS Legal Sidebar LSB10255, A Code of Conduct for the Supreme Court? Legal Questions and Considerations, by~~
~~Joanna R. Lampe.~~
~~364 See, e.g., Melissa Quinn,~~ ~~Appetite Grows on Capitol Hill for Code of Conduct for Supreme Court Justices after~~
~~Ginni Thomas Revelations, CBS NEWS (Mar. 31, 2022), https://www.cbsnews.com/news/supreme-court-code-of-~~
~~conduct-ginni-thomas/.~~
~~365 Compare Editorial Board, Justice Thomas Shouldn’t Recuse From Elections Cases, WALL ST. J (Mar. 30, 2022),~~
~~https://www.wsj.com/articles/justice-clarence-thomas-shouldnt-recuse-ginni-thomas-texts-donald-trump-supreme-~~
~~court-11648678766, with Nina Totenberg,~~ ~~Legal Ethics Experts Agree: Justice Thomas Must Recuse in Insurrection~~
~~Cases, NPR (Mar. 30, 2022), https://www.npr.org/2022/03/30/1089595933/legal-ethics-experts-agree-justice-thomas-~~
~~must-recuse-in-insurrection-cases; see also Ruth Marcus,~~ ~~The Supreme Court Has Lost its Ethical Compass. Can it~~
~~Find One Fast?, WASH. POST (Nov. 22, 2022), https://www.washingtonpost.com/opinions/2022/11/22/supreme-court-~~
~~ethics-alito-ginni-thomas/.~~
~~366 E.g., Alexandra Hutzler, Supreme Court Might Get a Code of Ethics Thanks to Clarence Thomas, NEWSWEEK (Mar.~~
~~31, 2022), https://www.newsweek.com/supreme-court-might-get-code-ethics-thanks-clarence-thomas-1693908.~~
~~367 H.R. 1, 117th Cong. (2021); S. 1, 117th Cong. (2021).~~
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~~Act,368 both of which would have required the Judicial Conference to issue a code of conduct that~~
~~applies to Supreme Court Justices. Those proposals echo similar bills from past Congresses that~~
~~would have likewise subjected the Supreme Court to a code of conduct.369~~
~~Legislative proposals to impose a code of conduct on the Supreme Court raise an array of legal~~
~~questions. One is a question of policy: Who should formulate the ethical standards to govern the~~
~~Justices? A proposal from the 115th Congress would have entrusted the Supreme Court itself with~~
~~the task of “promulgat[ing] a code of ethics” and would have given the Justices substantial (albeit~~
~~not unbounded) freedom to design the rules that would govern their own conduct.370 Similarly, a~~
~~House resolution introduced during the 117th Congress would have expressed “the sense of the~~
~~House of Representatives that the Justices of the Supreme Court should make themselves subject~~
~~to the existing and operative ethics guidelines set out in the Code of Conduct for United States~~
~~Judges, or should promulgate their own code of conduct.”371 The For the People Act and the~~
~~Supreme Court Ethics Act, by contrast, would not have allowed the Court to design its own~~
~~ethical code but would instead have granted that authority to the Judicial Conference—a body~~
~~composed of judicial branch officials but not itself a court.~~
~~A related question is whether legislative efforts to require the Supreme Court to abide by a code~~
~~of judicial conduct would violate the constitutional separation of powers. To ensure that federal~~
~~judges would decide cases impartially without fear of political retaliation, the Framers of the~~
~~Constitution purposefully insulated the federal judiciary from political control.372 Chief Justice~~
~~John Roberts invoked those ideals in his 2021 Year-End Report on the Federal Judiciary,~~
~~asserting that the courts “require ample institutional independence” and that “[t]he Judiciary’s~~
~~power to manage its internal affairs insulates courts from inappropriate political influence and is~~
~~crucial to preserving public trust in its work as a separate and coequal branch of government.”373~~
~~There is no dispute that the Court can voluntarily impose its own ethical rules. However, some~~
~~observers have argued that legislation imposing a code of conduct on the Supreme Court would~~
~~amount to an unconstitutional legislative usurpation of judicial authority. The House resolution~~
~~discussed above notes that separation of powers and the independence of the judiciary “may be~~
~~compromised by extensive legislative or executive interference into that branch’s functions” and~~
~~would thus avoid imposing any binding requirement on the Court.374 On the other hand, there are~~
~~a number of ways that Congress may validly act with respect to the Supreme Court, including its~~
~~authority to impeach Justices and to decide whether Justices are entitled to salary increases.375 By~~
~~extension, requiring the Supreme Court to adopt a code of conduct could constitute a permissible~~
~~exercise of Congress’s authority.~~

~~368 H R. 4766, 117th Cong. (2021); S. 2512, 117th Cong. (2021).~~
~~369 Anti-Corruption and Public Integrity Act, S. 3357, 115th Cong (2018), H.R. 7140, 115th Cong. (2018); Supreme~~
~~Court Ethics Act of 2017, S. 835, 115th Cong. (2017), H.R. 1960, 115th Cong. (2017).~~
~~370 Supreme Court Ethics Act of 2017, S. 835, 115th Cong. (2017), H.R. 1960, 115th Cong. (2017).~~
~~371 H. Res. 702, 117th Cong. (2021).~~
~~372 See, e.g., THE FEDERALIST NO. 79 (Alexander Hamilton).~~
~~373 JOHN G. ROBERTS JR., U.S. SUP. CT., 2021 YEAR-END REPORT ON THE FEDERAL JUDICIARY 1 (2011),~~
~~https://www.supremecourt.gov/publicinfo/year-end/2021year-endreport.pdf.~~
~~374 H. Res. 702, 117th Cong. (2021).~~
~~375 E.g., Amanda Frost, Judicial Ethics and Supreme Court Exceptionalism, 26 GEO. J. LEGAL ETHICS 443 (2013);~~
~~Brandon A. Mullings, Comment, Impropriety of Last Resort: A Proposed Ethics Model for the U.S. Supreme Court,~~
~~58 HOW. L.J. 891, 918 (2015).~~
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~~Distinct from the separation-of-powers issue is the question of whether Congress may authorize~~
~~the Judicial Conference—which is composed almost entirely of judges from the inferior federal~~
~~courts—to promulgate ethical rules to govern Justices on the high court.376 The Constitution~~
~~explicitly contemplates that the Supreme Court will be “supreme” over any other “inferior” courts~~
~~that Congress may establish.377 Some have therefore suggested that it would be unconstitutional,~~
~~or at least inappropriate, for the Judicial Conference to make rules for the Supreme Court.378 As~~
~~one example, Senior Associate Justice Anthony Kennedy has stated that it would raise a “legal~~
~~problem” and would be “structurally unprecedented for district and circuit judges to make rules~~
~~that Supreme Court judges have to follow.”379~~
~~Because the Supreme Court possesses the authority to determine the constitutionality of~~
~~legislative enactments, the Supreme Court itself would appear to have a critical role in~~
~~determining whether Congress may validly impose a code of ethical conduct upon it. It is difficult~~
~~to predict how a challenge to such a code might come before the Court and whether the Court~~
~~would uphold its constitutionality, as existing judicial precedent offers minimal guidance on how~~
~~the Court might resolve this constitutional question.380 For instance, the Supreme Court has never~~
~~explicitly decided whether the federal statute requiring Supreme Court Justices to recuse~~
~~themselves from particular cases is constitutional, nor has the Court ever directly addressed~~
~~whether Congress may subject Supreme Court Justices to financial reporting requirements or~~
~~limitations upon the receipt of gifts.381~~
~~It is also possible that the Supreme Court would decline to consider constitutional questions~~
~~related to legislation imposing ethical obligations. If Congress sought to compel the Supreme~~
~~Court to comply with a code of judicial conduct, the Justices might simply comply with its~~
~~mandates without challenging Congress’s constitutional authority to impose them. The Court has~~
~~often acquiesced to congressional attempts to subject Justices to specific ethical standards. For~~
~~example, when Congress decided to subject the Justices to financial disclosure requirements, the~~
~~Justices opted to comply with those provisions rather than challenge their constitutionality in~~
~~court.382 Justices have likewise implicitly accepted the validity of 28 U.S.C. § 455, discussed~~
~~above, and recused themselves pursuant to that statute without questioning whether Congress~~
~~possesses the constitutional authority to enact a judicial disqualification statute.383~~
~~In addition to the foregoing constitutional questions, a Supreme Court code of conduct could also~~
~~raise practical issues. One such issue concerns the effect of any ethical provisions that would~~

~~376 28 U.S.C. § 331.~~
~~377 U.S. CONST. art. III, § 1.~~
~~378~~Supreme Court Justices.369 On November 13, 2023, the Supreme Court issued the Justices’ Code of Conduct, which was adopted by the sitting Justices. According to a statement of the Court accompanying the Justices’ Code of Conduct, the Code is intended to “set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court,” and, for the most part, the “rules and principles are not new.”370 The new code contains five ethical canons: 1. A Justice should uphold the integrity and independence of the judiciary. 2. A Justice should avoid impropriety and the appearance of impropriety in all activities. 3. A Justice should perform the duties of office fairly, impartially, and diligently. 4. A Justice may engage in extrajudicial activities that are consistent with the obligations of the judicial office. 5. A Justice should refrain from political activity. Canons 1 and 2 are broadly worded and are accompanied by brief notes explaining in part that each Justice should “maintain and observe high standards of conduct” and “should not allow family, social, political, financial, or other relationships to influence official conduct or judgment.”371 Canon 3 governs disqualification, laying out circumstances in which Justices should recuse themselves from participating in cases because their impartiality might reasonably be questioned.372 Canon 4 allows Justices to speak, write, and teach about the law and engage in other extrajudicial activities, subject to certain limitations.373 Canon 5 provides that Justices should not engage in political activities, such as holding a leadership role in a political organization, endorsing candidates for political office, political fundraising, making campaign contributions, and running for elected office.374 The canons of the Justices’ Code of Conduct and the Judges’ Code of Conduct are nearly the same, but the two Codes have different explanatory notes, which may make a difference in how the Codes apply in practice. In commentary on the Justices’ Code of Conduct, the Supreme Court explains that the Justices’ Code “is substantially derived from the Code of Conduct for U.S. 367 28 U.S.C. § 455(a), (b). 368 See Ethics in Government Act of 1978, Pub. L. No. 95-521, tit. III, § 301, 92 Stat. 1851; see also CRS Legal Sidebar LSB10949, Financial Disclosure and the Supreme Court, by Whitney K. Novak (2023). 369 See U.S. SUP. CT., STATEMENT ON ETHICS PRINCIPLES AND PRACTICES (2023), https://www.judiciary.senate.gov/imo/media/doc/Letter%20to%20Chairman%20Durbin%2004.25.2023.pdf. 370 See JUSTICES’ CODE OF CONDUCT, Statement of the Court Regarding the Code of Conduct. 371 Id., Canon 1, Canon 2.B. 372 Id., Canon 3. Ethical canons related to recusal are distinct from, but related to, the federal recusal statute. Compare JUSTICES’ CODE OF CONDUCT, with 28 U.S.C. § 455; cf. United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir. 2001). 373 JUSTICES’ CODE OF CONDUCT, Canon 4. 374 Id., Canon 5. Congressional Research Service 41 Congressional Control over the Supreme Court Judges, but adapted to the unique institutional setting of the Supreme Court.”375 Specifically, the Court states that much of the commentary on the Judges’ Code is “inapplicable” to the Supreme Court and that the Justices’ Code and accompanying commentary are instead “tailored to the Supreme Court’s placement at the head of a branch of our tripartite governmental structure.”376 One key difference between the Justices’ Code and the Judges’ Code is that the Supreme Court’s new ethical rules expressly recognize Justices’ “duty to sit”—the obligation to participate in cases unless disqualified.377 This concept reflects a practical difference between the Supreme Court and the lower federal courts. In the lower courts, another judge may step in to take a recused judge’s place; by contrast, current law does not allow another jurist to hear a case in a recused Justice’s stead.378 In light of those considerations, the commentary on the Justices’ Code of Conduct explains, the recusal requirements in Canon 3 of the Justices’ Code differ from the requirements in the Judges’ Code, and recusal rules for Justices “should be construed narrowly.”379 Like the Judges’ Code of Conduct, the Justices’ Code of Conduct itself contains no enforcement mechanism. As noted above, alleged violations of the Judges’ Code can be the basis for a misconduct complaint under the Judicial Conduct and Disability Act.380 The Justices’ Code cannot serve as the basis for a similar process because the Act does not apply to Supreme Court Justices.381 Prior to November 2023, a number of commentators and legislators had called for the Supreme Court to be subject to a formal code of conduct.382 Some of those proposals would have had an entity other than the Supreme Court, such as Congress or the Judicial Conference, impose a code of conduct on the high court. Those proposals potentially raised constitutional issues related to the separation of powers or the unique role of the Supreme Court within the federal judiciary.383 By electing to adopt its own code of conduct, the Supreme Court may have avoided those legal questions and removed a possible source of interbranch conflict. One key question that remains following the adoption of the Justices’ Code of Conduct is whether the new Code will visibly affect the Justices’ behavior. Even before adopting the Justices’ Code, Supreme Court Justices were subject to certain ethics laws, regulations, and voluntary practices. The statement of the Court regarding the Justices’ Code says that the Code “largely represents a 375 Id., cmt. 376 Id. 377 Id. 378 See Cheney v. U.S. Dist. Ct., 541 U.S. 913, 915 (2004) (mem.) (Scalia, J.) (“Let me respond, at the outset, to Sierra Club’s suggestion that I should ‘resolve any doubts in favor of recusal.’ That might be sound advice if I were sitting on a Court of Appeals.... There, my place would be taken by another judge, and the case would proceed normally.”) (internal citation omitted); Microsoft Corp. v. United States, 530 U.S. 1301, 1303 (2000) (Rehnquist, C.J.) (“It is important to note the negative impact that the unnecessary disqualification of even one Justice may have upon our Court. Here—unlike the situation in a District Court or a Court of Appeals—there is no way to replace a recused justice.”). 379 JUSTICES’ CODE OF CONDUCT cmt. 380 JUDGES’ CODE OF CONDUCT, Canon 1, cmt. 381 See 28 U.S.C. § 351(d)(1). 382 See, e.g., Melissa Quinn, Appetite Grows on Capitol Hill for Code of Conduct for Supreme Court Justices after Ginni Thomas Revelations, CBS NEWS (Mar. 31, 2022), https://www.cbsnews.com/news/supreme-court-code-of-conduct-ginni-thomas/; H.R. 1, 117th Cong. (2021); S. 1, 117th Cong. (2021); H R. 4766, 117th Cong. (2021); S. 2512, 117th Cong. (2021). 383 For analysis of those proposals, see CRS Legal Sidebar LSB10255, A Code of Conduct for the Supreme Court? Legal Questions and Considerations, by Joanna R. Lampe (2022). Congressional Research Service 42 Congressional Control over the Supreme Court codification of principles that we have long regarded as governing our conduct.”384 This statement suggests that the Justices may believe that they have been appropriately following those principles. Related questions concern the extent to which Congress or the public will know whether Justices are complying with the Justices’ Code and what would happen if a Justice violates the Code. As mentioned, the Judicial Conduct and Disability Act does not apply to Supreme Court Justices, and there is currently no other formal mechanism to enforce the Justices’ Code of Conduct.385 The Justices’ Code also does not require Justices to disclose any information beyond what is already required by applicable laws and regulations. Congress does, however, have the power to investigate matters related to Supreme Court ethics.386 For example, the Senate Judiciary Committee has investigated transportation and gifts provided to members of the Court.387 Congressional efforts to compel a Justice to participate in such an investigation could raise novel separation-of-powers questions.388 Any congressional attempts to create enforcement mechanisms for the Justices’ Code of Conduct would likely be subject to constitutional limits, though the exact scope of those limits is unclear. If Congress amended the Judicial Conduct and Disability Act to apply to Justices, it could raise issues under Article III, Section 1, of the Constitution, which states that the federal judiciary shall include “one supreme Court.”389 Misconduct complaints under the Act are currently subject to initial review by the chief judge of each federal judicial circuit, with further review by circuit judicial councils and the Committee on Judicial Conduct and Disability within the Judicial Conference.390 Each stage of review is thus overseen by judges from the lower federal courts. Allowing lower court judges to review ethical decisions of Supreme Court Justices would arguably conflict with the constitutional status of the Supreme Court as the nation’s single highest tribunal.391 In addition, some commentators, legislators, and Justices have asserted that legislation related to Supreme Court ethics may violate constitutional limits or norms related to separation of powers. To ensure that federal judges would decide cases impartially without fear of political retaliation, 384 JUSTICES’ CODE OF CONDUCT, Statement of the Court Regarding the Code of Conduct. 385 See 28 U.S.C. § 351(d)(1); Amanda Frost, Judicial Ethics and Supreme Court Exceptionalism, 26 GEO. J. LEGAL ETHICS 433, 453–55 (2013). 386 CRS Report RL30240, Congressional Oversight Manual, coordinated by Ben Wilhelm, Todd Garvey, and Christopher M. Davis (2022). 387 Ann E. Marimow, As Democrats prepare to subpoena Thomas, Alito allies, one benefactor cooperates, Wash. Post (Nov. 8, 2023), https://www.washingtonpost.com/politics/2023/11/08/supreme-court-subpoenas-crow-leo-senate-democrats/. 388 See CRS Legal Sidebar LSB10962, Enlisting Assistance or Intruding On Judicial Independence? Compelling Testimony by Supreme Court Justices, by Todd Garvey (2023). 389 U.S. CONST. art. III, § 1. 390 FAQs: Filing a Judicial Conduct or Disability Complaint Against a Federal Judge, U.S. Courts (July, 2021), https://www.uscourts.gov/judges-judgeships/judicial-conduct-disability/faqs-filing-judicial-conduct-or-disability-complaint. 391 Kevin Hopkins, Kevin Hopkins, Supreme Court Leaks and Recusals: A Response to Professor Steven Lubet’s SCOTUS Ethics in the
Wake of NFIB v. Sebelius, 47 VAL. U. L. REV. 925, 933 (2013); JOHN G. ROBERTS JR., U.S. SUP. CT., 2011 YEAR-END , 47 VAL. U. L. REV. 925, 933 (2013); JOHN G. ROBERTS JR., U.S. SUP. CT., 2011 YEAR-END
REPORT ON THE FEDERAL JUDICIARY 4 (2011), https://www.supremecourt.gov/publicinfo/year-end/2011year-REPORT ON THE FEDERAL JUDICIARY 4 (2011), https://www.supremecourt.gov/publicinfo/year-end/2011year-
endreport.pdf (“Because the Judicial Conference is an instrument for the management of the lower federal courts, its endreport.pdf (“Because the Judicial Conference is an instrument for the management of the lower federal courts, its
committees have no mandate to prescribe rules or standards for any other body.”). committees have no mandate to prescribe rules or standards for any other body.”).
~~379~~Cf. Hearings Before a Subcomm. of the H. Comm. on Appropriations, 112th Cong. , 112th Cong. 158 (2012) (statement of Hon. Anthony (2012) (statement of Hon. Anthony
Kennedy, Kennedy, ~~Senior~~ Associate Justice, U.S. Supreme Court), https://www.crs.gov/products/Documents/hrg-2011-hap-Associate Justice, U.S. Supreme Court), https://www.crs.gov/products/Documents/hrg-2011-hap-
0022_from_1_to_359/pdf#page=1640022_from_1_to_359/pdf#page=164.
~~380 See CRS Legal Sidebar LSB10189, Calling Balls and Strikes: Ethics and Supreme Court Justices, by Cynthia~~
~~Brown.~~
~~381 JOHN G. ROBERTS JR., U.S. SUP. CT., 2011 YEAR-END REPORT ON THE FEDERAL JUDICIARY 6 (2011),~~
~~https://www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf.~~
382 See id.
~~383 Hopkins, supra note 378,~~ ~~at 902~~ (stating that it would raise a “legal problem” and would be “structurally unprecedented for district and circuit judges to make rules that Supreme Court judges have to follow”). .
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~~require Justices to disqualify themselves from particular cases. Unlike in the lower courts, where~~
~~a district or circuit judge from the same court may step in to take a recused judge’s place, no~~
~~statute or Supreme Court rule or practice allows a lower court judge or a retired Justice to hear a~~
~~case in a recused Justice’s stead.384 The disqualification of a Supreme Court Justice from a~~
~~particular case may leave the Court with an even number of Justices to decide the case and thus~~
~~increase the likelihood that the Court would be evenly divided and unable to create binding~~
~~precedent for future litigants.385 Conversely, if the other Justices would otherwise be evenly~~
~~divided, it may be especially important for a Justice with an appearance of partiality to avoid~~
~~casting the deciding vote.~~
~~A Justice’s refusal or failure to comply with a newly created code of conduct might also raise~~
~~enforcement issues. As discussed above, the Constitution~~ Congressional Control over the Supreme Court the Framers of the Constitution purposefully insulated the federal judiciary from political control.392 Chief Justice John Roberts invoked those ideals in his 2021 Year-End Report on the Federal Judiciary, asserting that the courts “require ample institutional independence” and that “the Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and coequal branch of government.”393 On the other hand, there are a number of ways that Congress may validly act with respect to the Supreme Court, including by impeaching Justices and deciding whether Justices are entitled to salary increases.394 By extension, requiring the Supreme Court to enforce or comply with a code of conduct could constitute a permissible exercise of Congress’s authority. A separate question is whether Congress could sanction a Justice who had allegedly violated the Justices’ Code of Conduct or another applicable ethical rule. In that situation, the Constitution would likely impose limits. Article III forbids Congress from reducing forbids Congress from reducing
Supreme Court Justices’ salaries or removing them from office except via the extraordinary and Supreme Court Justices’ salaries or removing them from office except via the extraordinary and
blunt remedy of impeachment.blunt remedy of impeachment.~~386~~395 Thus, Congress may Thus, Congress may ~~lack precise tools~~have limited means to induce to induce ~~recalcitrant~~
Justices to behave ethically.Justices to behave ethically.396 Because the Supreme Court possesses the ultimate authority to determine the constitutionality of legislative actions, the Supreme Court itself might play a critical role in determining the validity of congressional action related Supreme Court ethics. There is limited legal precedent on this issue because Congress and the Supreme Court have historically taken an approach focused on interbranch comity, declining to test the full extent of their powers in order to avoid conflict between the legislative and judicial branches.397 Thus, Congress has at times deferred to the Court to set court rules and procedures,398 and the Court has at times acquiesced to ethics legislation without formally deciding on its constitutionality.399 It is therefore difficult to predict whether or how the Court might address the constitutionality of possible Supreme Court ethics legislation. 392 See, e.g., THE FEDERALIST NO. 79 (Alexander Hamilton). 393 JOHN G. ROBERTS JR., U.S. SUP. CT., 2021 YEAR-END REPORT ON THE FEDERAL JUDICIARY 1 (2021), https://www.supremecourt.gov/publicinfo/year-end/2021year-endreport.pdf. 394 E.g., Amanda Frost, Judicial Ethics and Supreme Court Exceptionalism, 26 GEO. J. LEGAL ETHICS 443 (2013); Brandon A. Mullings, Comment, Impropriety of Last Resort: A Proposed Ethics Model for the U.S. Supreme Court, 58 HOW. L.J. 891, 918 (2015). 395
~~Cameras in the Courtroom and Other Transparency Measures~~
~~Some commentators and legislators advocate for increased transparency around Supreme Court~~
~~proceedings. One of the most prominent proposals in this area involves allowing video recording~~
~~of oral arguments.~~
~~Currently, the Supreme Court creates audio recordings and written transcripts of oral arguments,~~
~~which are available on the Court’s website soon after each argument is completed.387 Beginning~~
~~during the COVID-19 pandemic, the Court has also provided live audio streaming of oral~~
~~arguments.388 The Supreme Court does not allow photography or video recordings of~~
~~proceedings.389~~
~~In contrast to the Supreme Court, state courts in all fifty states allow video recording of at least~~
~~some proceedings.390 Some lower federal courts have also experimented with the practice.391~~

~~384 See Cheney v. U.S. Dist. Ct., 541 U.S. 913, 915 (2004) (mem.) (Scalia, J.) (“Let me respond, at the outset, to Sierra~~
~~Club’s suggestion that I should ‘resolve any doubts in favor of recusal.’ That might be sound advice if I were sitting on~~
~~a Court of Appeals. . . . There, my place would be taken by another judge, and the case would proceed normally.”)~~
~~(internal citation omitted); Microsoft Corp. v. United States, 530 U.S. 1301, 1303 (2000) (Rehnquist, C.J.) (“It is~~
~~important to note the negative impact that the unnecessary disqualification of even one Justice may have upon our~~
~~Court. Here—unlike the situation in a District Court or a Court of Appeals—there is no way to replace a recused~~
~~justice.”).~~
~~385 See “Disqualification” section of CRS Report R45300,~~ ~~Questioning Judicial Nominees: Legal Limitations and~~
~~Practice, by Valerie C. Brannon and Joanna R. Lampe.~~
~~386~~ U.S. CONST. art. III, § 1; U.S. CONST. art. III, § 1; see also Cong. Research Serv., Cong. Research Serv., Overview of Federal Judiciary Protections, CONSTITUTION , CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-10-1/ALDE_00013554/ (last visited Jan. 5, ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-10-1/ALDE_00013554/ (last visited Jan. 5,
2023); 2023); see also supra “Constitutionality of Legislation Modifying Life Tenure.”
~~387 U.S. Supreme Court, Argument Audio, https://www.supremecourt.gov/oral_arguments/argument_audio/2022 (last~~
~~visited Jan. 5, 2023).~~
~~388 Press Release, Media Advisory Regarding October Teleconference Argument Audio (Oct. 1, 2020),~~
~~https://www.supremecourt.gov/publicinfo/press/pressreleases/ma_10-01-20.~~
~~389 U.S. Supreme Court, Visiting the Court – Etiquette, https://www.supremecourt.gov/visiting/etiquette.aspx (last~~
~~visited Jan. 5, 2022).~~
~~390 See CRS Report R44514, Video Broadcasting from the Federal Courts: Issues for Congress, by Sarah J. Eckman.~~
~~391 SCOTUS Commission Report, supra note 28, at 225 n.163. The courts of appeals significantly expanded audio and~~
~~video streaming during the COVID-19 pandemic, though at least one circuit has since limited streaming. Christopher~~
~~D. Kromphardt, The 9th Circuit Live-Streams all of its Arguments. Will that Spread?, WASH. POST (Sept. 14, 2022),~~
~~Congressional Research Service~~

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~~link to page 30~~ ~~Congressional Control over the Supreme Court~~

~~Some commentators argue that the Supreme Court, too, should allow video recording of its~~
~~proceedings to increase transparency into the Court’s work.392~~396 This does not mean that all possible sanctions for Justices would necessarily be unconstitutional. For example, sanctions such as public or private reprimand do not appear to implicate judicial tenure or compensation. Furthermore, the Fifth Circuit has held, in a class action brought by federal judges, that civil penalties for noncompliance with the Ethics in Government Act’s financial disclosure requirements do not violate the Compensation Clause. Duplantier v. United States, 606 F. 2d 654, 669 (5th Cir. 1979) (“Although it is true that the civil penalty provisions of the Act may reduce a judge’s disposable income, that penalty cannot be fairly described as a diminution of compensation.”). Action to sanction a specific Justice might raise different legal questions than generally applicable ethics regulations. 397 JOHN G. ROBERTS JR., U.S. SUP. CT., 2011 YEAR-END REPORT ON THE FEDERAL JUDICIARY 6 (2011), https://www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf. 398 See CRS In Focus IF11557, Congress, the Judiciary, and Civil and Criminal Procedure, by Joanna R. Lampe (2020). 399 See JOHN G. ROBERTS JR., U.S. SUP. CT., 2021 YEAR-END REPORT ON THE FEDERAL JUDICIARY 6 (2021), https://www.supremecourt.gov/publicinfo/year-end/2021year-endreport.pdf. Congressional Research Service 44 link to page 6 Congressional Control over the Supreme Court Cameras in the Courtroom and Other Transparency Measures Some commentators and legislators advocate for increased transparency around Supreme Court proceedings. One of the most prominent proposals in this area involves allowing video recording of oral arguments. Currently, the Supreme Court creates audio recordings and written transcripts of oral arguments, which are available on the Court’s website soon after each argument is completed.400 Beginning during the COVID-19 pandemic, the Court has also provided live audio streaming of oral arguments.401 The Supreme Court does not allow photography or video recordings of proceedings.402 With respect to criminal matters specifically, Federal Rule of Criminal Procedure 53 prohibits federal courts, including the Supreme Court,403 from “permit[ting] the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom” in criminal cases.404 In contrast to the Supreme Court, state courts in all fifty states allow video recording of at least some proceedings.405 Some lower federal courts have also experimented with the practice.406 Some commentators argue that the Supreme Court, too, should allow video recording of its proceedings to increase transparency into the Court’s work.407 Others oppose such proposals, Others oppose such proposals,
arguing that video recording of oral arguments might lead advocates and even Justices to change arguing that video recording of oral arguments might lead advocates and even Justices to change
how they approach argument by prioritizing how questions and answers would appear to the how they approach argument by prioritizing how questions and answers would appear to the
public rather than thorough and candid discussion of each case.public rather than thorough and candid discussion of each case.~~393~~408 Some express concerns that Some express concerns that
excerpts of recorded arguments might be taken out of context.excerpts of recorded arguments might be taken out of context.~~394~~409 Several current and former 400 U.S. Supreme Court, Argument Audio, https://www.supremecourt.gov/oral_arguments/argument_audio/2022 (last visited Jan. 5, 2023). 401 Press Release, Media Advisory Regarding October Teleconference Argument Audio (Oct. 1, 2020), https://www.supremecourt.gov/publicinfo/press/pressreleases/ma_10-01-20. 402 U.S. Supreme Court, Visiting the Court – Etiquette, https://www.supremecourt.gov/visiting/etiquette.aspx (last visited Jan. 5, 2022). 403 Fed. R. Crim. P. 1(a)(1) (The Federal Rules of Criminal Procedure “govern the procedure in all criminal proceedings in the United States district courts, the United States courts of appeals, and the Supreme Court of the United States.”). 404 Fed. R. Crim. P. 53. See also CRS Insight IN12220, Broadcasting Federal Criminal Proceedings, by Sarah J. Eckman and Joanna R. Lampe (2023). 405 See CRS Report R44514, Video Broadcasting from the Federal Courts: Issues for Congress, by Sarah J. Eckman (2019). 406 SCOTUS Commission Report, supra note 28, at 225 n.163. The courts of appeals significantly expanded audio and video streaming during the COVID-19 pandemic, though at least one circuit has since limited streaming. Christopher D. Kromphardt, The 9th Circuit Live-Streams all of its Arguments. Will that Spread?, WASH. POST (Sept. 14, 2022), ~~Several current and former~~
~~Supreme Court Justices have stated their opposition to video recordings of Supreme Court oral~~
~~arguments, though others have expressed openness to the possibility.395~~
~~Several recent legislative proposals would authorize video recording of Supreme Court~~
~~proceedings.396 Congress could likely enact such measures via legislation. However, in light of~~
~~some Justices’ opposition to such measures, Congress might instead opt for other means to~~
~~increase transparency as a matter of inter-branch comity.~~
~~Other recent proposals would seek to increase transparency around Supreme Court proceedings in~~
~~different ways. Some proposals related to the Court’s motions docket would seek to encourage~~
~~disclosure of the Justices’ votes on certain emergency matters or the Court’s reasoning in~~
~~deciding those matters.397 Other proposals would require certain disclosures by persons filing~~
~~amici curiae briefs with the Court, including disclosure of who prepared and paid for each amicus~~
~~brief.398~~

~~Author Information~~

~~Joanna R. Lampe~~

~~Legislative Attorney~~

https://www.washingtonpost.com/politics/2022/09/14/ninth-circuit-livestreams-all-its-arguments-will-that-spread/. https://www.washingtonpost.com/politics/2022/09/14/ninth-circuit-livestreams-all-its-arguments-will-that-spread/.
With respect to the federal district courts, the Coronavirus Aid, Relief, and Economic Security Act, enacted in March With respect to the federal district courts, the Coronavirus Aid, Relief, and Economic Security Act, enacted in March
2020, allowed the chief judges of federal district courts to authorize the use of video or telephone conferencing to 2020, allowed the chief judges of federal district courts to authorize the use of video or telephone conferencing to
conduct certain criminal proceedings, with the consent of the defendant, in response to the national emergency related conduct certain criminal proceedings, with the consent of the defendant, in response to the national emergency related
to COVID-19. Pub. L. No. 116-136, § 15002, 134 Stat. 281, 527 (2020). to COVID-19. Pub. L. No. 116-136, § 15002, 134 Stat. 281, 527 (2020).
~~392~~407 E.g., Editorial Board, , Editorial Board, Good on the Supreme Court for Keeping Live Audio. Now it’s Time to Go Further., WASH. , WASH.
POST (Oct. 2, 2022), https://www.washingtonpost.com/opinions/2022/10/02/supreme-court-audio-broadcasts-cameras-POST (Oct. 2, 2022), https://www.washingtonpost.com/opinions/2022/10/02/supreme-court-audio-broadcasts-cameras-
video/; Edith Roberts, video/; Edith Roberts, Courtroom Access: Legislative Efforts to Allow Cameras in Supreme Court Chamber, ,
SCOTUSBLOG (Apr. 27, 2020), https://www.scotusblog.com/2020/04/courtroom-access-legislative-efforts-to-allow-SCOTUSBLOG (Apr. 27, 2020), https://www.scotusblog.com/2020/04/courtroom-access-legislative-efforts-to-allow-
cameras-in-supreme-court-chamber/. cameras-in-supreme-court-chamber/.
~~393~~408 E.g., Nancy S. Marder, , Nancy S. Marder, Keep Cameras Out of Supreme Court: Opposing View, USA TODAY (Mar. 27, 2013), , USA TODAY (Mar. 27, 2013),
https://www.usatoday.com/story/opinion/2013/03/27/cameras-supreme-court-nancy-marder/2026517/. https://www.usatoday.com/story/opinion/2013/03/27/cameras-supreme-court-nancy-marder/2026517/.
~~394~~409 E.g., Zachary B. Wolf, , Zachary B. Wolf, Hear Ye! No See Ye! Why the Supreme Court is so Afraid of Cameras, CNN (Oct. 6, 2022), , CNN (Oct. 6, 2022),
https://www.cnn.com/2022/10/06/politics/supreme-court-cameras-what-matters/index.html. https://www.cnn.com/2022/10/06/politics/supreme-court-cameras-what-matters/index.html.
~~395~~Congressional Research Service 45 link to page 30 Congressional Control over the Supreme Court Supreme Court Justices have stated their opposition to video recordings of Supreme Court oral arguments, though others have expressed openness to the possibility.410 Several recent legislative proposals would authorize video recording of Supreme Court proceedings.411 Congress could likely enact such measures via legislation.412 However, in light of some Justices’ opposition to such measures, Congress might instead opt for other means to increase transparency as a matter of inter-branch comity. Other recent proposals would seek to increase transparency around Supreme Court proceedings in different ways. Some proposals related to the Court’s motions docket would seek to encourage disclosure of the Justices’ votes on certain emergency matters or the Court’s reasoning in deciding those matters.413 Other proposals would require certain disclosures by persons filing amici curiae briefs with the Court, including disclosure of who prepared and paid for each amicus brief.414 Author Information Joanna R. Lampe Legislative Attorney Acknowledgments Former Legislative Attorney Kevin M. Lewis wrote earlier CRS Reports on Supreme Court term limits and judicial ethics that were adapted into the relevant sections of this report. Inquiries on all topics can be submitted to the listed author of this report. 410 See, e.g., , id.;; Hearings Before a Subcomm. of the H. Comm. on Appropriations, 116th Cong. (2019) (statements of , 116th Cong. (2019) (statements of
Samuel Alito & Elena Kagan, Associate Justices, U.S. Supreme Ct.), https://www.govinfo.gov/content/pkg/CHRG-Samuel Alito & Elena Kagan, Associate Justices, U.S. Supreme Ct.), https://www.govinfo.gov/content/pkg/CHRG-
116hhrg38124/html/CHRG-116hhrg38124.htm; The Daily Show With Trevor Noah, 116hhrg38124/html/CHRG-116hhrg38124.htm; The Daily Show With Trevor Noah, “Just Ask” & Life as a Supreme
Court Justice – Extended Interview, YOUTUBE (Sept. 16, 2019), https://www.youtube.com/watch?v=Nztz3yuF3lY; , YOUTUBE (Sept. 16, 2019), https://www.youtube.com/watch?v=Nztz3yuF3lY; see
also Robert Kessler, Robert Kessler, Why Aren’t Cameras Allowed at the Supreme Court Again?, ATL. (Mar. 28, 2013), , ATL. (Mar. 28, 2013),
https://www.theatlantic.com/national/archive/2013/03/case-allowing-cameras-supreme-court-proceedings/316876/. https://www.theatlantic.com/national/archive/2013/03/case-allowing-cameras-supreme-court-proceedings/316876/.
~~396~~411 Cameras in the Courtroom Act, H.R. Cameras in the Courtroom Act, H.R. 3222, 118th Cong. (2023); S. 858, 118th Cong. (2023); H.R. 4257, 117th Cong. (2021); S. 807, 117th Cong. (2021); S. 822, 116th Cong. 4257, 117th Cong. (2021); S. 807, 117th Cong. (2021); S. 822, 116th Cong.
~~(2019).~~
~~397 See supra “Motions Practice: the “Shadow Docket”.’”~~
~~398~~(2019). 412 To allow broadcasting of criminal cases, Congress could either amend Federal Rule of Criminal Procedure 53 or enact legislation superseding the rule. See Fed. R. Crim. P. 53 (prohibiting broadcasting of criminal proceedings “except as otherwise provided by a statute or these rules”). The Supreme Court also has the power to change federal court procedural rules, subject to review by Congress, under the Rules Enabling Act. See CRS In Focus IF11557, Congress, the Judiciary, and Civil and Criminal Procedure, by Joanna R. Lampe (2020). 413 See supra “Motions Practice: the “Shadow Docket”.’” 414 AMICUS Act, H.R. 6266, 117th Cong. (2021); S. 3385, 117th Cong. (2021). AMICUS Act, H.R. 6266, 117th Cong. (2021); S. 3385, 117th Cong. (2021).
Congressional Research Service Congressional Research Service

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Congressional Control over the Supreme Court

~~Acknowledgments~~
~~Former Legislative Attorney Kevin M. Lewis wrote earlier CRS Reports on Supreme Court term limits and~~
~~judicial ethics that were adapted into the relevant sections of this report. Inquiries on all topics can be~~
~~submitted to the listed author of this report.~~

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