Some fast facts about reform:

Reforming the Supreme Court is possible.

The Constitution leaves most details of the Supreme Court’s structure up to us. It says:

 “The judicial Power of the United States, shall be vested in one supreme Court”

and 

“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” (Art. III, Sec. 1)
 

The Court’s size has changed seven times since the founding.

Since the Constitution does not set the number of justices on the Supreme Court, the Court’s size has fluctuated.

 

In 1789, the Court began with six members. In 1801, the Court’s size was temporarily reduced to five. By 1863, the Court’s size had grown to ten.[1]

[1] Todd N. Tucker, Off-Balance Five Strategies for a Judiciary That Supports Democracy, Roosevelt Institute 38 (2018). [Roosevelt Institute]

 

Congress can place limits on what cases the Supreme Court can hear.

The Constitution says that “The supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” (Art III, Sec. 2). 

 

Though there have been debates as to how far Congress can go in “jurisdiction stripping,”[2] the Court upheld the practice as recently as 2018.[3]

 

[2] See United States v. Klein, 80 U.S. 128 (1871).

[3] Patchak v. Zinke, 138 S. Ct. 897 (2018).

 

Congress has also considered supermajority voting rules for the Supreme Court.

 

Currently, five out of nine justices are all that’s required for the Supreme Court to reach a decision. But since the 1820s, Congress has considered dozens of proposals to require that more than just a bare majority agrees in order to decide a case.[4]

 

One of these proposals even passed the House in 1868.

[4] Jed Handelsman Shugerman, A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court, 37 Ga. L. Rev. 893, 997 (2003).

 

Both Republicans and Democrats have explored Supreme Court reform.

Two examples:

In the 1930s, the Supreme Court struck down portions of President Franklin Delano Roosevelt’s New Deal legislation. President Roosevelt proposed adding seats to the Court, but the plan was ultimately abandoned.

In the early 1980s, Republican members of Congress introduced 22 bills aimed at removing the Supreme Court’s jurisdiction over the issues of abortion, school prayer, and busing.[5] John Roberts, then an attorney in the Reagan administration’s Department of Justice, authored a strong defense of the constitutionality of these bills.

[5] Mark Agrast, Judge Roberts and the Court-Stripping Movement, Center for Am. Progress (Sept. 12, 2005) [CAP].

 

Some questions to consider:

 

  • How much power should the Supreme Court have relative to Congress? Relative to the president?

  • How effective and representative is the current nominations process?

  • Is life tenure something that should be maintained or changed?

  • Should just a bare majority of justices be able to determine the Court’s decisions?

 
 
 

Agree we need SCOTUS reform?

#SCOTUSReform 2020