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There are a number of questions regarding the motivations and effects of "packing" the supreme court in the United States of America by adding more justices of the appointer's preference. It is well established that there is no constitutional limit to the number of supreme court justices -- Congress need only change the law.

What would happen if rather than increasing the number of justices, congress decided to decrease the number. Could sitting justices be removed? If so, how would the justices to be removed be decided?

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The size of the Supreme Court can be changed by passing a law

The size of the Supreme Court is set by statute: Title 28 § 1 of the United States Code. Under the necessary and proper clause, Congress has the power to pass legislation about how "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" are carried into execution. Supreme Court justices are officers of the United States.

It doesn't need to involve removal of a sitting justice

As you mention, there is precedent that Congress may change the size of the Supreme Court. There is historical precedent for reducing the size of the court—but not for removal of any justices: the changes only affected whether appointments would be made to replace them. That approach (reduction by attrition) avoids the question you raise of "how would the justices to be removed be decided".

Impeachment: an established process to remove a federal judge

Supreme Court justices are considered civil officers of the United States, which are subject to removal through the process of impeachment per Article II § 4 (U.S. Constitution Annotated, LII, Cornell Law School).

Eight federal judges (none on the Supreme Court) have been removed after being impeached and convicted.

This removal process is not connected to the process of changing the legal size of the Court.

Could anything other than impeachment remove a judge? Unclear

Article III of the US Constitution precribes the duration for which federal judges hold office:

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.

There is no constitutional distinction here between a justice of the Supreme Court and another federal judge. The phrase “during good Behaviour” is widely interpreted as giving federal judges lifetime tenure.

It has been speculated, but not tested, that Congress could pass a statute allowing removal of a federal judge upon a judicial finding of bad behavior

However, I found an article, “How To Remove a Federal Judge,” Saikrishna Prakash and Steven D. Smith, The Yale Law Journal 2006, that argues that if an appropriate statute were passed by Congress, a judicial finding of misbehavior ought to be legally sufficient grounds for removal.

Prakash and Smith suggest removal of a federal judge could occur via something like the following procedure:

Our research suggests that under the historically established meaning of "good Behaviour" tenure, Congress could have enacted a statute authorizing the President or perhaps even a private party "' to bring an action in court to determine whether a judge had departed from "good Behaviour." A court so finding could then have ordered the judge's removal-subject of course to appellate review

(page 125)

This kind of procedure never seems to have been attempted; Prakash and Smith suggest that Congress preferred not to try this approach because it would require politically involving other actors than Congress. In contrast, impeachment is initiated by Congress and is not subject to judicial review, so if the Senate voted to remove an impeached Supreme Court justice, there wouldn’t be any way to appeal the removal.

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  • I find that last quote a bit dubious, because (A) I'm not sure if Congress can delegate its removal power to the other branches in the first place, (B) I'm not sure whether Congress can waive or abrogate judicial immunity as might be required for this sort of scheme, and (C) I think the "private individual" would not be able to show any personal benefit from the removal of a judge (so it would not be an equitable remedy) and might also struggle with standing (see Spokeo v. Robins). – Kevin Sep 24 at 19:27
  • So one would have to change the constitution in order to immediately reduce the court's size. What would it take to do that? Also perhaps a question: Can lifetime tenure be voided or is it immune against later attempts to revoke it? For example, imagine court districts are joined and a federal court has no district any longer; does it cease to exist? What will the judges do (if not all of them join the fused court)? – Peter - Reinstate Monica Sep 25 at 9:58
  • @Peter: It would basically be impossible to change the Constitution. You need 2/3 of each chamber of Congress, plus 3/4 of state legislatures, to all agree with your amendment. In this day and age, that will not happen. – Kevin Sep 25 at 22:13
  • @sumelic: By "broad power to make statutes regarding federal judges," I assume you refer to some part of Article I, Section 8, but I cannot for the life of me figure out which clause you are specifically talking about. – Kevin Sep 26 at 2:54
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    @Kevin: I was basing that on the fact that such statues exist; I didn't actually know the constitutional basis. It looks like it's based in the clause "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Federal judges are officers of the United States. A page that gives some examples: law.cornell.edu/constitution-conan/article-2/section-2/clause-2/… – sumelic Sep 26 at 3:07
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The Supreme Court has been reduced in size twice in history. On both occasions, the reduction was done by attrition – that is, by not filling the next vacancy.

The first instance was The Judiciary Act of 1801 (poetically known as the Midnight Judges Act) would have reduced the size of the Supreme Court from 6 to 5 Justices by not filling the next vacancy. This never occurred, though, as it was overruled by The Judiciary Act of 1802. Interestingly the Midnight Judges Act also created 16 new circuit judgeships which John Adams proceeded to pack in the 19 remaining days of his presidency.

The second instance was The Judicial Circuits Act of 1866 which attempted to reduce the size of the court to 7 Justices through attrition:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no vacancy in the office of associate justice of the supreme court shall be filled by appointment until the number of associate justices shall be reduced to six; and thereafter the said supreme court shall consist of a chief justice of the United States and six associate justices, any four of whom shall be a quorum;

Th loss of 2 Justices resulting in the court decreasing in size to 8 (from 10) before the passage of the Judiciary Act of 1869 increased the size back up to 9.

A similar action today would likely follow the same lines since, as the other answers point out, there is no legal way to remove a Supreme Court Justice aside from Impeachment by the Senate.

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The appointments are lifetime so you can't remove someone from the court by reducing the number on it. Reducing the number of allowed seats on the court would mean that there would not be a replacement when a member leaves until it is under the new limit. With that in mind it is unlikely that they would lower the limit since there is no way to control which member leaves when.

https://www.nationalgeographic.com/history/2020/09/why-us-supreme-court-nine-justices/

Federalist John Adams, the second president of the United States, signed the bill into law on February 13, 1801. But the signing came just after he had lost his reelection campaign to political rival Thomas Jefferson, and the move was seen as an attempt to limit his successor’s appointments to the court. Jefferson quickly repealed the bill when he took office before any changes to the court’s composition could take effect. Since Supreme Court seats are lifetime appointments, the law had not removed any justices from the court but simply stipulated that the next vacant seat would not be replace

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    This is a good answer, but you should probably add that Justices can only be removed (potentially) by impeachment and trial (the same process as applied to the President). Federal judges have been removed in this fashion, but it's never been applied to a Supreme Court Justice, so there would certainly be debate over the matter. The Senate would have demonstrate real malfeasance (not just incompetence or partisanism), and somehow gather a supermajority to accomplish this, so it's extremely unlikely, but still... – Ted Wrigley Sep 23 at 19:44
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    @TedWrigley The Senate would have demonstrate real malfeasance impeachment is a political process. if you have the votes, you have the votes. did andrew johnson commit a 'high crime or misdemeanor?' no not really but again all that matters is how many vote for impeachment and removal.but it's never been applied to a Supreme Court Justice. Of course it has, Samuel Chase was impeached, he just wasn't removed: the impeachment process still was applied. There is a custom/precedent that SC court justices won't be impeached for politics, go ask trump how much customs matter – eps Sep 24 at 19:39
  • @eps Exactly the senate can chose to impeach for any reason they choose, however their may be very strong political repercussions for them depending on why they do it. – Joe W Sep 24 at 20:23
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A functioning democracy requires both respect for the written constitution and the unwritten rules of conduct.

  • Accepting the concept of a loyal opposition, who are acknowledged as patriots even if they disagree with the current government.
  • Accepting the occasional transfer of power to the oppositon as necessary and healthy.
  • Accepting the need for oversight of the executive both from the opposition in parliament, which gets rights to inquire and complain, and by the parliamentary arm of the majority party, which usually controls the functions reserved for the parliament.

Looking in from abroad, it seems that this respect has been disintegrating in the United States, not just since the current administration. I believe the three answers so far miss the point that the question presumes a further deterioration of the political climate. To pack the Supreme Court, the current minority would have to win both the Senate and the White House. To try and undo that packing, the current majority would have to regain their majority after this loss. (Just Congress or both Congress and Presidency? That would affect how they decide to fight it.)

Speculation about what happens then would be highly dependent on the political climate, and unlikely to respect historical precedent. The language of the constitution might be upheld, but it might be twisted into a pretzel in the process.

  • A sufficient majority might impeach judges not for anything they have done, but for how they have been selected.
  • A majority which can change laws but not convict on impeachment might try to introduce a health check to remove "senile" judges, possibly rather biased tests.
  • The President could sign an executive order removing some judges and see if there are effective complaints (not the Congress, so it isn't really an answer to this question).
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    I like the fact that your answer takes into consideration what might be the motivation to attempt something like this. I see no possible scenario where the president could attempt to remove a justice. Except for the power of appointment, I don't believe that the president has any other authority over one of the co-equal branches of government. – Itsme2003 Sep 24 at 15:02
  • I would expect that an executive order to this effect would be simply ignored as there exists no power of the Presidency for removing federal judges (SCOTUS or otherwise.) That power is reserved solely to Congress and only via impeachment. Executive orders direct executive departments to take some action or another. Federal judges aren't part of any executive department or the executive branch at all. They have no obligation to abide by any executive order, as the executive has no authority over them. – reirab Sep 24 at 21:29
  • @Itsme2003, did you hear the joke (or was it a joke?) by Trump about stopping Biden from running? Political figures talk about things that would have brought bipartisan condemnation 20 or 30 years ago. – o.m. Sep 24 at 21:30
  • Also, to undo court packing, just like doing it in the first place, would require the consent of both Congress and the President (or else a supermajority of both houses of Congress sufficient to override a veto.) – reirab Sep 24 at 21:31
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    @reirab, my point is that respect for the rule of law must be dead to get to the starting conditions of such a scenario. They called it the nuclear option to end the 60-vote rule in the Senate. So what is court packing? The equivalent of an all-out first strike? – o.m. Sep 24 at 21:38
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The current answers overlook one obvious method. The congress could pass a constitutional amendment on a procedure for removing justices and submit it to the states for ratification. If it was ratified then the justices could be removed as stated in the amendment. Note that I am not saying that this would be likely to happen, and it's highly doubtful that it would happen quickly.

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  • If you are mentioning this, you should mention that States can call a constitutional convention without the consent of congress as well. – Yakk Sep 24 at 19:31
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    Hi Yakk. Yes, the states could, but the question asked what could congress do. – Itsme2003 Sep 24 at 19:46
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As the other answers have stated, there's no immediate way to reduce the size of the SCOTUS within the lines set by the Constitution. However, there is nothing there that explicitly requires the entire court to participate in all cases they hear. It is likely within Congress' power to pass laws specifying that only a subset of the justices should hear and rule on each case. There couldn't be permanent subsets (or it'd run afoul of "one supreme Court" in Article III), or the possibility of appealing it to the full Court, but there's nothing to prohibit the concept either.

It'd then theoretically be possible to arrange for certain cases to come before a specific subset of the justices, which could produce a similar effect to actually reducing the size of the court.

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  • "It is within Congress' power to pass laws specifying that only a subset of the justices should hear and rule on each case" <- this is a very interesting point. Can you add a citation for it? – divibisan Sep 24 at 15:13
  • @divibisan - I know I've seen it proposed, but I just went looking and couldn't find a citation either way. The closest was a passing suggestion that because the requirement in Article III is "one Supreme Court", having either a two-tier court (where an en banc review is possible) or predefined panels would be out. But nothing either way about arbitrary subsets. I'll edit to make it clearer that this is not actually clear. – Bobson Sep 24 at 15:47
  • It is likely within Congress' power to pass laws specifying that only a subset of the justices should hear and rule on each case. The SC is a coequal branch of government, congress can't tell them what to do or how to operate. Any law saying otherwise would be, kinda ironically, struck down by the SC. i suppose an amendment could do it, but not a law. – eps Sep 24 at 19:52
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    @eps - The number of justices on the court and the number that define a quorum are set in law. The length of a term is, too. I think it's perfectly reasonable to say that a new law could change anything else about how the SC operates. – Bobson Sep 25 at 6:09

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