Is this proposal by U.S. presidential candidate Pete Buttigieg to change the composition of the Supreme Court constitutional?

Question

Pete Buttigieg is running as a candidate for the U.S. Democratic Presidential Primary to become the Democratic Presidential Nominee. He recently(-ish) said he was looking into/supportive of a plan that involved adding seats the U.S. Supreme Court.

This Fox news article states:

He said the plan he finds “most intriguing” would expand the high court to 15 justices, with five appointed by a Democratic president, five by a GOP president, with the other five coming from the appellate bench and being seated only by the unanimous consent of the other ten.

“It just takes the politics out of it a little bit. Because we can’t go on like this, where every time there’s a vacancy, there’s these games being played and then an apocalyptic ideological battle over who the appointee is going to be,” he argued.

Boston.com quotes him as saying:

but only 10 of them are appointed through a traditional political process [i.e. the president and the Senate], Democrats and Republicans,” he said.

Vox says:

Buttigieg has embraced an interesting idea (first proposed in this Vox article by Daniel Epps and Ganesh Sitaraman) by which Democrats and Republicans would get to name five justices each, and then those justices would jointly name another five members to the Court.

I am not sure the exact process Mr. Buttigieg has in his mind, but that might be beside the point.

---

My Question

Is there a constitutionally valid way to enshrine a system of equal Democrat and Republican representation in the Supreme Court (with a ""neutral"" third portion)?

According to the House of Reps website:

Before Members are assigned to committees, each committee's size and the proportion of Republicans to Democrats must be decided by the party leaders. The total number of committee slots allotted to each party is approximately the same as the ratio between majority party and minority party members in the full Chamber.

Committees members are chosen (somewhat) proportionally as opposed to half-and-half. I am not sure what would happen if a 3rd party got enough Representatives to demand a committee member though.

Could a similar argument to that is used against partisan gerrymandering be used to assert that this type of Supreme Court structuring harms 3rd party citizens by excluding their party from the process?

Possible Follow-up Questions:

• Which court would be able to rule on such a case, the "old" Supreme Court or the "new" Supreme Court?
• Would it be allowable for current justices to be removed if, say, 6 of the 9 were deemed "Republican"? (Wikipedia says a previous law that would have shrunk the court only did so on the next vacancy)

note: I understand this might be unable to be answered without specific details of a plan, but I am not sure. I also understand something like this will probably not pass both the House and the Senate.

Answer 1

First, the House and Senate operate however it is their rules say they operate. They can change how committees are apportioned by simply changing the rules. As-is, the few third party or independent members are such a tiny minority that it is more advantageous for everyone if they simply caucus with the party they find most agreeable. The caucus is what's really used for committees and such; Bernie Sanders is formally an Independent in the Senate, but he caucuses with the Democrats and gets committee appointments and such as a result.

The first problem with Buttigieg's proposal is the presumption that we won't have a long string of Presidents from a single party. There may not be a second party President to appoint those members for an arbitrarily long period of time; certainly long enough for all prior appointments by one to have retired or died. The bigger problem to Buttigieg's proposal is the Constitution

...and [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court,...

And that's all the Constitution says about how Supreme Court Justices arise. Congress does not have the power to place Justices there themselves. It is a power of the President to appoint Justices; the Senate simply exercises "advice and consent" to decide on whether or not to approve the appointment. So the only way to stop a Party 1 President from appointing someone to a "Party 2" Justice position is by the Senate not consenting; by basically doing what they did to Garland. And if Party 1 controls the Senate, that seems unlikely.

Now, it has been established that Congress can decide how many Justices are on the court. So they could certainly pass a law that increases the size of the court to 15 Justices. But that's about the extent of their power over the Supreme Court. It is untested as to who actually decides who the Chief Justice is (by tradition the President specifically nominates someone for this post, but nothing explicitly requires it), but that's pretty much the only uncertain part about the composition of the Court. The Supreme Court doesn't even bring in lower court justices to fill in empty spots in the court (whether by recusal, death, or otherwise), ostensibly because that violates the one and only way the Constitution specifies that someone can act as a SCOTUS justice.

So without a constitutional amendment to alter how Justices are appointed to the Supreme Court, the idea simply wouldn't work, as it's plainly unconstitutional. And the amendment would have to be more accommodating of the fact that the current two parties might not always be there, might not alternate power much for extended periods of time, or even that the political system might be changed enough to allow third parties (though in that case the changes would probably easily encompass changing this particular proposal).

But with a constitutional amendment anything is possible.

Answer 2

Would it be allowable for current justices to be removed if, say, 6 of the 9 were deemed "Republican"? (Wikipedia says a previous law that would have shrunk the court only did so on the next vacancy)

No. Constitutionally, judges serve for life terms. They can only be removed by impeachment, resignation, or death. Of course, if Congress is already modifying the constitution to allow someone other than the president to appoint Supreme Court justices, they could amend lifetime terms as well.

As a side note, the Pete Buttigieg/Vox proposal does not "deem" Justices to be Republican or Democrat. It counts by party of the appointer, not by any intrinsic characteristic of the judge. So David Souter, John Paul Stevens, and Harry Blackmun would all have counted as Republicans even if they mostly voted with the Democrats.

Answer 3

Is there a constitutionally valid way to enshrine a system of equal Democrat and Republican representation in the Supreme Court (with a ""neutral"" third portion)?

Yes. It is called amendment.

The proposal is not possible under the current constitution because it calls for 1/3 of the court to be selected by the other 2/3 of the court, for which there is no provision in the constitution.

The only part of this proposal that would not require amending the constitution is changing the size of the court. But there is a good deal of baggage on that question, thanks in part to FDR's unsuccessful court-packing scheme. Perhaps it is now sufficiently remote in time that the question could be revisited sometime soon. The question of which president would get to appoint the new justices, however, will continue to pose a problem to any plans to expand the court.

There are, as noted in other answers, procedural problems with the proposal as well. For example, what happens when the appointee from one party leaves the court during the presidency of the member of another party?

Which court would be able to rule on such a case, the "old" Supreme Court or the "new" Supreme Court?

Whichever justices are on the court at the time, so, depending on when the case is brought, probably the old court. Unless the constitutional amendment removed the sitting justices from the court, which would be unwise because then there would be no court at all for a time.

Would it be allowable for current justices to be removed if, say, 6 of the 9 were deemed "Republican"? (Wikipedia says a previous law that would have shrunk the court only did so on the next vacancy)

This would be allowed only if the constitutional amendment instituting the new system so provided.

Answer 4

The United States Constitution is really vague on the definition of the Supreme Court. This is all it says:

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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

So is what Buttigieg suggesting constitutional? Yes. Because the Constitution does not exclude any of it. The Constitution says nothing about the number of justices or their qualifications.