Over recent weeks, the public eye has turned toward the Supreme Court with fresh scrutiny.
A conservative majority issued a series of blockbuster decisions this term on abortion rights, gun laws, and greenhouse gas emissions, drawing heightened attention to the court itself, including how justices are selected and confirmed and concerns about the potential politicization of the judicial system.
Republicans have long fought for the appointments of conservative justices, three of whom were added to the bench during the Trump administration. Now, some liberal lawmakers, spurred on by the overturning of Roe v. Wade and other recent decisions, are calling for reforms, including the idea of term limits or even expanding the number of seats on the court.
But what would such reforms entail, and what would they mean for the court? We asked legal experts to explain.
How many Supreme Court justices are there, and how long do they serve?
There are nine justices serving on the Supreme Court, and they have lifetime appointments. John Roberts is the chief justice of the Supreme Court, and the eight associate justices include Clarence Thomas, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson. Six of the current justices are generally regarded as conservative leaning, while three are seen as more liberal. Justice Jackson was sworn in Thursday, the first Black woman to serve on the nation’s highest court.
Are Supreme Court justices ever removed?
Justices can only be removed through impeachment by the House of Representatives and conviction by the Senate. But what actions provide grounds for impeachment are not specified in Article III of the Constitution, according to Laurence Tribe, a constitutional scholar and Harvard Law School professor.
“It says that judges serve during good behavior, and it’s generally regarded as equivalent to the idea of abuse of power, in the same way that the president is impeachable for abuse of power,” he said. “It doesn’t have to be literally a crime.”
Only one Supreme Court justice has ever been impeached, said Michael Meltsner, a professor at Northeastern University School of Law. That was Samuel Chase, described in his biography as a “staunch Federalist with a volcanic personality.” But Chase was acquitted by the Senate, and he resumed his duties on the bench until he died in 1811.
While a swath of Americans may take issue with some of the court’s recent decisions, no known actions nor behavior of those currently sitting on the court would be grounds for removal, Tribe said.
That has not stopped some members of the public, troubled by recent rulings, from starting petitions online calling for the impeachment of certain justices, including one from the progressive organizing group MoveOn demanding Thomas’s removal. That petition has so far collected more than a million signatures.
Why are some politicians calling for term limits for justices?
A proposal that has been discussed for years by some academics and politicians is the establishment of 18-year terms for Supreme Court justices, Meltsner said.
A commission created last year by President Biden to study structural revisions to the court found that term limits were the most likely to garner bipartisan support. A Congressional bill introduced last year calls for the implementation of term limits, requiring that the president appoint a new justice every two years while also limiting the “advice and consent authority” of the Senate.
Proponents argue term limits would keep justices from wielding excessive influence and would make appointments more predictable. And for lawmakers seeking to make changes, experts said, term limits seem to be among the least politically toxic reforms.
But such limits are unlikely to be imposed.
Both Tribe and Judge Nancy Gertner, a retired federal court judge and professor at Harvard Law School, served on the commission. While Tribe had been in favor of term limits for years, he said his perspective on the issue has changed.
Although there is a legitimate argument, Tribe said, that term limits could be implemented by statute, he believes the constitutional objections are serious enough that the “current court would end up ruling that it’s unconstitutional to do without a constitutional amendment.”
Gertner expressed similar apprehensions. She noted that there is no other major democracy in the world that has a life term for their justices on courts of equal standing. But implementing term limits, Gertner argued, would mandate a constitutional amendment — a complicated process and one rarely executed with success. To that point, it hasn’t been done since 1992.
Could more seats be added to the Supreme Court? Wouldn’t that just lead to an endless cycle of calling for more seats?
Expanding the court is viewed as perhaps the most aggressive measure being floated — and one that has become increasingly popular among some progressive lawmakers, including Massachusetts Senators Ed Markey and Elizabeth Warren.
Supporters argue that expanding the high court would help restore balance to the institution after President Barack Obama was blocked from appointing a justice during the last year of his administration. In contrast, when President Donald Trump nominated Amy Coney Barrett, she was confirmed just days before the November 2020 election.
Critics maintain, however, that adding seats would undermine the legitimacy and further politicize the court in the eyes of Americans. Biden recently indicated that he is opposed to expanding the number of seats on the court.
“Congress can expand the Supreme Court if the president goes along,” Meltsner said, “but that is probably the most politically dangerous of all these options.”
“Court-stacking has a very bad odor in history and American political life,” he said.
The number of seats on the court fluctuated between five and 10 until 1869, and there are now nine justices on the court. One of the central arguments against adding seats to the court is that if one party elects to enlarge the body, the other will reciprocate when necessary to achieve a political end, said Tribe.
Meltsner said the “tit for tat” concern is not even a possibility in his mind. It would take “just as much, if not more” political will to expand the court a second time.
“Maybe in 50 years, but I don’t think that would happen,” he said.
What about a code of ethics for justices? What would that entail?
The Supreme Court is one of the most powerful on the planet in comparison to other high courts largely in part because it has “no enforceable ethical code,” Gertner said. While they claim to be bound by the usual canon of ethics for a judge, it is not compulsory.
“Other countries have a Senate being able to override a constitutional interpretation. We don’t have that,” she said. “They’re the last word on the Constitution, and it’s very difficult to amend it.”
And if Congress were to pass such a code and the president signed it into law, it would go to the high court, Meltsner said, which it could decide to accept “or as they say, ‘We’re a separate branch of government and we’ll decide what to do,’” thus continuing to operate as it has since its formation centuries ago.
Regardless, even if the court were to abide by such a code, it would not amount to a “dramatic or even a significant change in what the justices do” anymore than it has had an effect on how the legislature conducts its business, he added.
By not having a code in place, Meltsner said, justices have the sole responsibility of deciding when they should recuse themselves from a case. They are not subject to any other power, he noted, and “it’s not typical of people with power to give it up.”