Congress has always had the authority to reform the Supreme Court. Indeed, Congress created the court through the Judiciary Act of 1789, establishing the number of justices on the court, the breadth of its jurisdiction, and the procedures under which it operates. Throughout American history, Congress has passed laws addressing the scope and function of the Supreme Court along these lines—altering jurisdiction, the number of sitting justices, and even establishing statutes that create ethical guidelines and disclosure requirements, although some justices have chosen to ignore the federal recusal statute. For instance, Congress has changed the size of the court in several instances; the court began with six justices, expanded to 10, contracted to eight, and finally settled on nine in 1870 in accord with the number of circuit courts existing at that time. The Supreme Court has accepted Congress’ authority to limit its jurisdiction since the Reconstruction era, which Congress did on several occasions in both the 1930s and 1940s. Indeed, Congress enacted the judicial recusal statute, 25 U.S.C. §455, in 1948 to include Supreme Court justices. Based on the history and tradition of Congress regulating the Supreme Court, a congressional statute that includes term limits for justices and a binding code of ethics should be squarely constitutional.
Enacting term limits by statute
As ethics scandals continue to roil the Supreme Court, there have been increased calls from civil society, policymakers, and even other judges to reform the court in recent years through the imposition of 18-year terms for active service. However, these calls are not new, and have come from both the left and the right. For example, Federalist Society Chair Stephen Calabresi called for such reforms in 2006 (although Calabresi called for these reforms through a constitutional amendment rather than by statute). Scholars have debated whether such a reform would necessarily require a constitutional amendment or whether it could be achieved through legislation. Constitutional experts have long extolled the constitutionality of enacting term limits by statute, and the argument has been gaining strength in recent years among bipartisan experts. Furthermore, with growing calls for Supreme Court reform by the public, a number of bills have been introduced in the 118th Congress adopting various mechanisms to achieve 18-year term limits for justices via statute. These mechanisms range from simple, immediate institution of term limits to more nuanced proposals allowing senior justices to continue hearing cases of original jurisdiction—such as those involving a state or an ambassador—while the nine most junior justices consider appellate cases.
In December 2021, the Presidential Commission on the Supreme Court of the United States—consisting of a broad spectrum of constitutional experts, legal practitioners, and policymakers—issued a report detailing how reforms could be made to the high court. While the commission did not formally recommend any reforms, it made clear there was strong consensus among academics and practitioners across ideology on the merits of term limits. The commission conducted a thorough analysis of how 18-year term limits could be instituted via statute, including through a junior and senior justice system, which is discussed below. In analyzing the constitutionality of such a system, the commission—along with other scholars—pointed to the 1802 decision in Stuart v. Laird, in which the court held that Congress could direct justices to sit on lower courts by “riding circuit” and that the question was not open to challenge because the “practice and acquiescence” of doing so for 12 years solidified it as constitutional.
While the Constitution requires that justices hold office during good behavior, Congress has enacted statutes that allow justices to do so while voluntarily altering their judicial duties. For instance, Congress statutorily enacted 28 U.S.C. §371 in 1948 to create “senior status” for justices by which they maintain their salaries and benefits, may hear cases in circuit court, and may otherwise engage in the administration of the court while not hearing cases argued before the Supreme Court. The commission notes that this statutory provision allows judges to “retain the office but retire from regular service.” Under this understanding, justices still maintain their “office,” though they no longer participate in the court’s decisions—they only give up their office through resignation. The commission notes that under the term limit proposals, little would change in the way that senior justices continue to serve and that their roles could even be expanded by statute or court practice.
As altering a judge’s duties does not result in removal from office, a congressional mandate imposing an alteration in duties should likewise withstand challenges based on the Good Behavior Clause of the Constitution. To that end, a bipartisan working group of constitutional experts at the American Academy of Arts and Sciences has put forth a proposal to establish 18-year term limits on justices that could withstand constitutional challenges and address concerns regarding appointments. This proposal creates a strong constitutional framework for incepting term limits and crucially allows for current justices to be “grandfathered” and excepted from the 18-year term limit. This could result in a temporary expansion of the court until such time that the presently sitting justices voluntarily take senior status or die, ultimately leaving the court with a fixed nine justices actively deciding cases.
In order to strengthen the constitutionality of this proposal, Congress should enumerate certain duties for senior justices—both current justices who voluntarily take senior status and those subject to the new 18-year limit on actively hearing cases—to undertake so that they continue to play a significant role in the function of the court. For example, justices on senior status could continue being designated to sit for circuit court cases and participating in administrative tasks for the high court. They could also participate in motions practice and drafting per curium affirmances or reversals at the direction of the chief justice. Senior justices might also take a permanent seat on the Judicial Conference, which is currently composed of the and the chief judges of each circuit, a designated district court judge from each circuit, and the chief judge of the Court of International Trade.
Furthermore, Congress should create a statutory role for senior justices to play in enforcing a binding code of ethics for the Supreme Court. In doing so, senior justices could notably continue to hear and decide Supreme Court cases by lottery in instances when justices voluntarily recuse from cases or when recusal is mandated by the binding ethics code to ensure that a full cadre of nine justices hears each case. Furthermore, as the 18-year term limit matures, unanticipated vacancies may arise due to early resignation, retirement, disability, or death. The senior justices could likewise sit during these vacancies by lottery, thus maintaining stronger ties to the “Offices” they hold, as required by constitutional experts.
Several recent justices—including Chief Justice Roberts, Justice Elena Kagan, and Justice Stephen Breyer—have indicated openness to term limits at various points. By exempting currently sitting justices from the 18-year limits and providing significant statutory roles in the operation of the court once senior status is taken, it is feasible that the present justices could uphold statutorily created term limits.
Senior justices in ethics enforcement
Federal law ostensibly holds Supreme Court justices to the same ethical standards as lower court judges via 28 U.S.C. §455. The federal disqualification statute explicitly provides for the recusal of Supreme Court justices from cases in which their impartiality might be reasonably questioned, they may have personal bias or prejudice concerning a party, or they or a family member has a financial interest, among other standards. The justices have not comported with this statute in recent terms. As history has shown, having any component of government hold itself above the law is antithetical to the U.S. constitutional framework—even the purported weakest branch.
Presently, the congressional proposals for Supreme Court reform advance term limits and ethical reforms mutually exclusive of each other. However, combining legislation and the implementing mechanisms for a binding, enforceable code of ethics and term limits for justices will enhance the constitutionality of both provisions.
There are a number of ways to achieve this goal. First and foremost, under the present system, each individual justice is solely responsible for determining if they must recuse due to a request or ethical obligation. This is unworkable and has led to a lack of accountability. Instead, either all of the other active and senior justices, or more narrowly just the senior justices, should be tasked with considering motions to recuse and should be mandated to provide an opinion on the recusal in writing. Justices who take senior status could be directed to continue in this role, and Congress could require that tied votes—in the event of an even number of justices—would favor recusal. Furthermore, having a slate of senior justices who could fill an absence in the event of recusal would obviate operation of the “rule of necessity,” which states that all nine justices should hear a case when possible. As the justices themselves—with new duties assigned—will be those holding their colleagues to task, judicial supremacy and separation of powers concerns would be diminished significantly. Others have proposed allowing the Judicial Conference to oversee justices’ recusal and ethical questions, but this could imperil such a scheme, as the Constitution is clear that no court can be superior to the Supreme Court.
Congress also needs to ensure that nominated justices are not blocked by an intransigent Senate in order to maintain an active and functional court with a full complement of justices as these proposed reforms intend. This is particularly of concern when the president and the Senate majority are of different political parties. One means of doing so would be to place procedural restrictions on the function of the court if too much time passes without a vote on a justice’s confirmation. For example, failure or refusal by the Senate to confirm a nominee within 180 days could trigger a statutory increase in the number of justices necessary to form a quorum, which was first established in the Judiciary Act, to conduct business and would ratchet up over time and with each additional unfilled vacancy. Exceptions could be made for emergency appeals related to the death penalty. Such a trigger could reduce the incentive for inaction by a Senate majority content with the current composition of the court. There are undoubtedly other variations on procedural safeguards to create greater systemic pressure for nominees to receive Senate consideration.
Conclusion
While the Supreme Court has been considered above the political fray throughout much of its history, it is now thumbing its nose at the constitutional order. The high court cannot be allowed to usurp the roles of Congress and the executive and further endanger American democracy. Substantive Supreme Court reform is urgently needed to obviate the judicial power grab occurring in real time and restore the constitutional authority of enacting and enforcing the law to the proper branches of government.
Combining 18-year limits on active en banc service for Supreme Court justices with a reliance on senior justices for enforcing a new binding ethics code makes each of these necessary statutory reforms stronger operationally and constitutionally. While other individual proposals for the constituent reforms may work, they are likely to face increased risk of being struck down. To be clear: Absolutely no law passed by Congress can be assured of standing under this court and its preference for power over reason. However, that reality cannot justify inaction. Should the court strike down a reform package, it will significantly expand the political will to pack the court—an authority Congress has wielded repeatedly in the past—or to pass a constitutional amendment that goes much further to hem in a court run amok.
While term limits tied to a binding code of ethics are the most urgently needed reforms, they are by no means the only changes Congress should make to the court’s outdated operation. A reform package should also include increasing transparency in how the court grants certiorari—and perhaps reinstitute mandatory certiorari in some instances—and make changes to the court’s so-called shadow docket. Justices should be barred from owning individual stocks and receiving lavish gifts from third parties. Additional reforms limiting judge and forum shopping in the lower courts and establishing a clear standard for statutory interpretation are also needed.
The Supreme Court can be reformed through statute without the need for a constitutional amendment. Now Congress and the president must find the will to do so.