The 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 branches—Congress and the executive branch.¹ In the Federalist Papers, Alexander 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 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 certain important protections³ but also grants the political branches, and especially Congress, 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 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 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 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 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 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 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 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 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 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 supermajority of Justices before the Court can declare a law unconstitutional, or allowing Congress to override Supreme Court decisions;¹⁴ imposing or enforcing new judicial ethics rules for Justices;¹⁵ 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 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 system of government.

Legal and Historical Background

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 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 "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 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 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 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 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 separation of powers and interbranch comity counsel against Congress regulating the Supreme 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 procedures.

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-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 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 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 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 Court to hold state actions unconstitutional.²⁸

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 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

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 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 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 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 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 reform proposals."³⁴

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 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 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 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 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 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 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

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 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 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.

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 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.

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 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 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 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 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 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 the means by which political actors may influence the Supreme Court's approach to interpreting 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 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 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.

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 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 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 Justices.⁴⁹

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 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' 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 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-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 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 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 motivated by a mix of institutional and political concerns."⁵⁶

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 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 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 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 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 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 the Supreme Court also publicly opposed the proposal on both practical and separation-of-powers grounds.⁶¹ The bill did not advance in Congress.

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, voted to uphold a minimum wage law in West Coast Hotel Co. v. Parrish.⁶² He later also voted to 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 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 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

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 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, but the House Judiciary Committee declined to advance the proposal.⁶⁶

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 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 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 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 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 reduction would occur as Justices left the bench.⁷¹

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 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 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 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 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 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 the Court's political composition.⁷⁵

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 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 Federalist Papers for courts that would interpret the law impartially and explained that the "independence of the judges is ... 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, 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 resort).⁷⁸ Article III's life tenure requirement and salary protections were also designed to insulate judges from political pressure.⁷⁹

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 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 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 "theory of the bill is in direct violation of the spirit of the American Constitution."⁸¹ Some 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 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 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 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 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 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

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 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 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

Considerations for Congress

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 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 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 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.⁹² Another proposal would reduce the size of 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 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 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 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

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 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 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 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 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 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 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 encouraging strategic retirements by sitting Supreme Court Justices;⁹⁸ delaying, expediting, or 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.

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 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 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 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 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

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 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 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

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 constitutional issues discussed above, many commentators worry that proposals that seek to 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 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 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 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

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 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 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 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 reforms discussed elsewhere in this report.¹¹⁴

Changes to Supreme Court Justices' Tenure

Among other provisions intended to safeguard judicial independence,¹¹⁵ the Constitution 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 constitutional provision gives Supreme Court Justices life tenure unless they leave the bench 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 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 in the Federalist Papers that federal judges could not be expected to enforce constitutional 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 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 Offices during good Behaviour."¹²² Although the Constitution does not define good Behaviour,¹²³ the Federalist Papers 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 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 remained on the Court until they pass away or voluntarily leave the bench.¹²⁶

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 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 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 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 active service until death.¹³⁵

Third, Justices who become unable to perform the office's duties may retire for disability.¹³⁶ 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 years of service receive half of that salary.¹³⁷

Finally, a Justice who is ineligible to retire with a salary may resign from the Court.¹³⁸ For instance, Justice Arthur Goldberg resigned after three years to become the ambassador to the United Nations.¹³⁹

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:

• 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
• Irregular Vacancies—If Justices remain on the Court until they die or voluntarily retire, judicial vacancies may arise at irregular intervals.¹⁵⁰ This may cause uncertainty and political disruptiveness and has given different Presidents unequal opportunities to appoint Supreme Court Justices.¹⁵¹
• Political Unresponsiveness—Life tenure may render Justices unresponsive to the electorate and prevailing social views.¹⁵²
• Judicial Activism—Life tenure may embolden Justices to behave more like policymakers than neutral arbiters.¹⁵³

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 points in the nation's history, sometimes in response to high-profile judicial decisions.¹⁵⁵ To date, no such proposals have been enacted.

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 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 vacancies.¹⁶⁰

Alternatively, some opponents of life tenure advocate a mandatory retirement age for Supreme 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 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 modifying judicial tenure would require a constitutional amendment.¹⁶⁴ Emphasizing that Article III states that Justices "shall hold their Offices during good Behaviour" rather than "hold their Offices for life," 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 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 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 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 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 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 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 instance, courts often consult the Federalist Papers when interpreting the Constitution.¹⁷³ As discussed above, the Federalist Papers describe the Good Behavior Clause as "secur[ing] [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 would authorize Congress to affect judicial tenure legislatively.

Some commentators argue that the Supreme Court's 1803 decision in Stuart v. Laird supports the constitutionality of a term- or age-limit statute.¹⁷⁸ In Stuart, the Court upheld a statute that 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 establishment of the lower courts through the Judiciary Act of 1789.¹⁷⁹ If Congress can require Supreme Court Justices to spend a portion of each year hearing lower court cases, this argument goes, Congress could require Justices to spend the final years of their judgeships hearing lower court cases exclusively.¹⁸⁰ However, Stuart 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.

Considerations for Congress

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 amendment, it would face choosing whether to impose a term limit, an age limit, or some other 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 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 encourage judicial restraint, others contend that shorter terms could undermine judicial independence.¹⁸⁷

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 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 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 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 arises every two years.

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 their terms expire.¹⁹³ While some commentators claim that the prospect of reappointment would 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 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 nominees.¹⁹⁷

Some have argued that amending the Constitution to impose a specific maximum age could be 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 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, 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 appointment process.¹⁹⁹

Statutory Options

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 proposal, the Supreme Court Term Limits and Regular Appointments Act of 2023, would allow 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 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 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 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 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 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 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 addition to other changes.

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 any proposal would raise constitutional issues if implemented by ordinary legislation, Congress could instead seek to amend the Constitution.

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 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 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 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 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 been confirmed to serve on the courts of appeals.

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 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 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 federal courts might deem a challenge to the requirement to pose a nonjusticiable political question.²¹⁶

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 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 appointments."²¹⁷ Relatedly, by explicitly associating Justices with a political party, some might 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 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

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 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 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 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 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 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 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 requirement such that "each panel would be prohibited from having more than five Justices 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 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

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 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 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 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 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 sit temporarily on the Supreme Court.

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 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 the line. However, a proposal might be more likely to comply with the "one 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 by 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 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 Supreme Court decisions;²⁴² imposing new judicial ethics rules for Justices or changing how such rules are enforced;²⁴³ or implementing transparency measures, such as allowing photographs or video recordings of Supreme Court proceedings.²⁴⁴

Motions Practice: The "Shadow Docket"

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 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. These may include orders granting or denying petitions for writs of certiorari; ruling on 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 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 meaningful ruling in the case.²⁵¹

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 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 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 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

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 explains the Court's reasoning and notes which Justice authored the opinion and which Justices 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 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 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 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 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.

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 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 these concerns,²⁷⁹ although other Justices have defended non-merits orders as an ordinary part of the Court's decisionmaking process.²⁸⁰

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 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 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 docket" stems from the federal government's litigation strategy, the executive branch could also play a role in reform.²⁸²

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 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 relief²⁸⁸ or enact legislation imposing more stringent standards for when the Supreme Court may overrule a lower court.²⁸⁹

Limits on Jurisdiction

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 jurisdiction stripping.²⁹⁰ 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. Some jurisdiction-stripping measures have been enacted and evaluated by courts,²⁹² while others 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 provision by granting the Supreme Court appellate jurisdiction over a subset of the cases included in the constitutional grant.³⁰³

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 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 has upheld multiple legislative limits on its jurisdiction.³⁰⁶

While the Exceptions Clause grants Congress significant power over the Supreme Court's 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 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 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 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 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 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'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 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, 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-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, 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 powers if it sought to strip state courts of jurisdiction to hear federal constitutional challenges to state laws.³²²

Beyond the foregoing legal considerations, commentators also debate whether jurisdiction-stripping proposals would promote or undermine policy goals such as increasing democratic accountability, promoting bipartisanship and political stability, protecting constitutional rights, 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-case basis.

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 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, Congress has even changed the Supreme Court's term in an attempt to prevent it from considering a constitutional challenge.³²⁶

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 down government action.³²⁹

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 constitutionality of government actions. For instance, Congress might direct courts not to strike 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 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 ability to 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 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 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 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 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 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 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 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, 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 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.

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 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 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.

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 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 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 proposals to expand the override of judicial decisions would allow Congress or another entity to reject the Supreme Court's constitutional rulings.

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 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 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 Brown v. Board of Education,³⁴⁷ 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 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 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 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

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 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 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 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 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 override.

Judicial Ethics

Another reform proposal that has attracted attention in recent years involves the judicial ethics rules that 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.

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 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 apply to 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. 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 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, 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 Supreme Court Justices' salaries or removing them from office except via the extraordinary and blunt remedy of impeachment.³⁹⁵ Thus, Congress may have limited means to induce 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 to 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.

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, 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 public rather than thorough and candid discussion of each case.⁴⁰⁸ Some express concerns that excerpts of recorded arguments might be taken out of context.⁴⁰⁹ 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.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 interbranch 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