Ask Jordan: What is the process for adding justices to the Supreme Court?

“What would be the procedure for adding more justices to the Supreme Court?” — Mary Carroll

Hi Mary,

The procedure is simple: Congress passes a bill and the president signs it into law.

The political reality, however, is more complicated.

Currently, there are nine justices. But that number isn’t fixed by the Constitution, and the court doesn’t set its own membership. It’s up to the political branches. The last change was in 1869, with a law that put the court at nine, where it has been ever since.

But again, nothing in the Constitution says it must stay that way. It is therefore a question of whether we, through our elected representatives, choose to change that number or let it stay the same.

Procedurally, contrast court expansion with term limits, which could require a constitutional amendment because the Constitution gives federal judges life tenure. That makes the relatively modest reform of term limits more procedurally challenging than the more potent reform of expansion.

But any reform faces political challenges. Republicans currently control Congress, and Democrats are looking to regain power in the November midterm elections. Even if they win back both the House and the Senate, Donald Trump is still president. He wouldn’t support Democratic-backed reform, and Democratic senators wouldn’t want to confirm any justices he would nominate to any new seats.

The conversation could become more plausible should Democrats control both Congress and the White House in the future. They had that control during Joe Biden’s presidency, but he did not support expansion.

Still, it’s a live issue in the Congress and the commentary surrounding the court. Some Democrats have advocated for expanding to 13 justices — to reflect the number of lower circuit courts today, and to compensate for GOP gamesmanship in crafting the current 6-3 majority.

Meanwhile, congressional Republicans have pushed for a constitutional amendment to cement the court at nine members. Although they hold the majority, the measure failed last month because House Democrats in the minority had enough votes to block it.

Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal newsletter.

The post Ask Jordan: What is the process for adding justices to the Supreme Court? appeared first on MS NOW.