How Much More Could The Supreme Court Change: Constitutional Law Professor Weighs In

3 months ago

On "Forbes Newsroom," UPenn Law Professor Kermit Roosevelt discussed the history of the Supreme Court and what aspects are variable.

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00:00Now, you mentioned the founding fathers weren't ever imagining

00:05that the political system would get this divisive

00:09and that we'd see so much fighting

00:10between the two parties over the Supreme Court.

00:13I want to zoom out a little bit and ask you how much

00:16about the court is settled law and was determined

00:19by the Constitution, and how much more could it change?

00:22Because I think the idea of changes to the court,

00:26it's a little surprising if you really think about it

00:29in the context of history.

00:31Well, it is a little surprising,

00:33but maybe it shouldn't be as surprising as we think.

00:36So the Constitution says a few things about the Supreme Court.

00:40It says some things about its jurisdiction,

00:42although it does explicitly give Congress the power

00:44to make regulations and exceptions

00:47for the Supreme Court's appellate jurisdiction.

00:50And it says that the judges shall hold their office during

00:53good behavior, which is understood

00:55to mean life tenure.

00:57It doesn't say what size the Supreme Court should be.

01:01And actually, the Supreme Court has changed

01:03in size over the years.

01:04It started out at six.

01:06It was increased up to nine.

01:08The Republicans made it 10 to give Lincoln an extra appointment.

01:12After Lincoln was assassinated, they shrank it.

01:15A similar thing happened with Jefferson.

01:17Jefferson's opponents tried to deny him appointments

01:20by manipulating the size of the court.

01:22So it's happened.

01:23And actually, some people would say

01:25that that's what the Republican Senate did

01:26when they refused to consider Merrick Garland.

01:28They shrank the size of the court to eight, effectively.

01:31And then they brought it back up to nine

01:33to allow Trump to make an appointment.

01:35So changing the size of the Supreme Court,

01:38it is within Congress's power.

01:40And it has been done in the past.

01:42Nonetheless, people think that it's the most radical

01:44because I think it's the most partisan.

01:46It clearly looks partisan.

01:47Now, term limits, on the other hand,

01:50I've been saying that really is a nonpartisan good government

01:53solution to a problem that we have.

01:55Our appointments process for the Supreme Court

01:57just doesn't make sense.

02:00That, however, is a little more radical

02:02constitutionally speaking because there

02:05might be problems with the constitutional provision that

02:08says judges shall hold their office during good behavior.

02:12So if you said you're a Supreme Court justice for 18 years

02:16and then you're not a Supreme Court justice anymore,

02:18that would violate the Constitution.

02:20And the way that people have tried to get around this

02:24is by saying, here's what it means

02:26to be a Supreme Court justice.

02:28You will sit in regular active service for 18 years.

02:31And then after that, you will do something else.

02:34You will maybe decide cases on the courts of appeals

02:37or something like that.

02:38And that's what retired Supreme Court justices do now.

02:42And the interesting thing about this proposal

02:45is that the US Supreme Court has said

02:49a judge who takes senior status, which

02:51is what the justices do when they retire, is still a judge.

02:55They still hold the office.

02:57So it seems possible, based on that precedent, to say, well,

03:02we're going to move people to a slightly different set of job

03:05descriptions, but we're not removing them

03:08from the office of judge.

03:09And in fact, you still address retired Supreme Court justices

03:14as associate justice.

03:15According to the Supreme Court, they are still

03:17Supreme Court justices.

03:18So it seems like technically maybe you

03:20could do this without a constitutional amendment,

03:22but that's certainly not clear.

03:25That is so interesting.

03:26So it is technically legal, but then there

03:29are technicalities that you would

03:31have to abide by to put those term limits in place.

03:34Yeah, and I think it would ultimately end up in court.

03:37And ultimately, the Supreme Court

03:39would be the one deciding it.

03:41Oh, well, that's more meta.

03:42That's a whole different puzzle.

03:44Yeah.

03:44That breaks my brain a little bit.

03:46Well, what some people have suggested

03:48is we don't think the Supreme Court's going

03:50to like the idea of term limits, so we

03:52should package them in a bill.

03:54And we say, here's the term limits.

03:56And if you invalidate term limits,

03:59then four seats are immediately added to the Supreme Court.

04:02So if you don't let us have term limits,

04:04we're going to do expansion.

04:06Oh, wow.

04:08That's spicy, for lack of a better word.

04:11That really sets up more political fighting.

How Much More Could The Supreme Court Change: Constitutional Law Professor Weighs In

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