How could the US Congress reduce the size of the US Supreme Court?

Question

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?

Answer 1

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.

Answer 2

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.

Answer 3

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

Answer 4

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).

Answer 5

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.

Answer 6

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.