Increasing the count to 13 and loading it with Dems would be one way to "get even" but seems kind of likely to backfire. We've already seen the analysis that Republican Judges vote differently than Democratic Judges and vice versa, so could the Senate fix the packing problem in a way other than just adding 4 Democrats to the bench?

What if they altered the structure to be 18 judges with 9 reserved for each party and then before the start of every case they drew lots to decide which 9 judges would hear that case. This way you could never be assured your case at the supreme court would be seen "favorably" by either party. What it would do is allow the supreme court to hear twice as many cases (maybe?) by splitting it into 2, 9 judge panels that each handled a separate case. My guess is we would need 2 chief justices and they would have to pull a straw before the others did so that we have a guaranteed "chief" on each panel, or maybe one panel doesn't get a "chief" if the constitution prohibits 2 "chiefs".

Adding this randomizer makes it less likely that packing the court works for either side and reserving 9 for each side means packing can't ever happen. What does pose a problem is it excludes any potential 3rd party in the future. Yes, there is the possibility that some shenanigans are pulled in the choice of judges for a case, but surely we can fix that with technology.

I don't see how the constitution prohibits this, but I'm sure there is some kind of obscure something I don't know too.

  • 2
    Does this answer your question? Is an expansion of the US Supreme Court really possible?
    – user29681
    Commented Oct 28, 2020 at 2:15
  • 1
    @Chipster Close, but this one is about the overall structure (i.e. something like what Jonathan Turley talked about recently), not just the size
    – Machavity
    Commented Oct 28, 2020 at 3:30
  • 2
    @Machavity It doesn't make a difference. The Court size and structure are both determined by Congress. So in terms of answers, this question is pretty much the same.
    – user29681
    Commented Oct 28, 2020 at 4:10
  • Correct @Machavity, the other answer is not an answer to my question. There are several problems with SCOTUS during this time of hyper-partisanship and we need to correct all of them, and hopefully for a longer time. Hence the idea of a random set of judges being assigned to each case. We should probably also codify the time period during which a lame duck senate/president can add a member to the panel, but I don't really know how to solve that problem so I didn't mention it. But just adding members to the court does nothing to solve the current problems, just kicks the can down the road.
    – boatcoder
    Commented Nov 2, 2020 at 2:20
  • What about representation for those of us who do not ascribe to either the Democrat or Republican party? These 'independent' actually represent the plurality of the electorate.
    – ouflak
    Commented Apr 10, 2021 at 21:41

2 Answers 2


Very Unlikely (without an amendment)

SCOTUS has before rejected the idea that Congress can fiddle with the internals of SCOTUS itself beyond the specifically prescribed constitutional powers of "advice and consent" on appointing justices, impeachment, and controlling their appellate jurisdiction. Laws on ethical behavior and recusal for federal judges has, for example, been rejected as applying to them. You may recall that before his confirmation to SCOTUS, there was an ethics review being done on Kavanaugh as a result of the allegations of Dr. Ford. The board has legal authority to conduct such reviews over all federal judges, but after Kavanaugh's confirmation his ethics review was quickly dismissed for lack of jurisdiction: the board simply had no authority over SCOTUS itself. This is done on the basis of the separation of powers—the justices/SCOTUS form a separate and co-equal branch of government to Congress and the President—, and that the constitution is intended to be one of enumerated powers, and there is no power enumerated for determining the structure of the Supreme Court.

A peculiar exception, perhaps, is the membership of the court itself. Nothing in the constitution states how many justices there are to be on the court, and the position of "Chief Justice" is only brought up when describing the impeachment trial of a President in the Senate. There is, in particular, no specifically ascribed power for Congress to determine the membership of the court. It has, to date, been traditionally ascribed as an implied power of "advice and consent" to appointments to the court. Limiting the number of members can be construed as a pre-requisite to consent: currently, if there's already 9 Justices, then consent is denied. Congress could change the threshold at which it automatically denies consent by simply passing a new law. There are some who believe that SCOTUS is the true holder of the power to decide the number of its members, but at this point it would be a very radical departure from traditions, including multiple changes in the court's size by Congress over the nation's history that were simply accepted, if the justices actually tried to assert such a power. And as appointments to the court remains specifically a power of the President and the Senate, it's questionable what practical effect they could actually give to such an assertion. An easier-to-exercise claim to power would be to assert that SCOTUS decides who their Chief Justice is, though this would again fly in the face of a tradition that has lasted for the nation's entire history.

It is SCOTUS itself which has decided what role the Chief Justice actually plays. For the most part, the Chief Justice is equal to each Associate Justice, and the Justices make various decisions democratically, though by tradition the Chief Justice decides who writes the majority opinion (and it is frequently written by the Chief Justice if they join that opinion).

Another—I'd argue less significant—potential exception is how Justices are assigned over federal circuits. Congress has, via Article III of the Constitution, the specific power to create (and remove) and regulate all federal courts inferior to the Supreme Court, and the assignment of Justices to oversee particular circuits is done in accordance with Title 28, United States Code, Section 42. But it is SCOTUS itself which decides, through whatever process it so pleases, which of its justices are assigned to which circuits. That there can be a structure of justices assigned to oversee circuit courts is derived from Congress' power over the inferior courts, but the specific allocation of those Justices to particular circuits is, by separation of powers, left to SCOTUS itself. The law in question does specifically state the assignment is left to SCOTUS to decide, I will note. This was done as a recognition of the separation of powers, and a corresponding caution to the possibility that the law might have been stricken down entirely if going any further in specifying the assignment was deemed unconstitutional.

  • This answer seems to imply that the Senate alone could change the size of SCOTUS because you frame the Judiciary Act of 1869 in terms of "automatic consent," where consent is an exclusive privilege of the Senate. Is it correct, in your estimation, that the Senate could repeal or replace the section of the Judiciary Act of 1869 establishing the size of the Supreme Court to be nine justices without the approval of the House? Commented Oct 28, 2020 at 18:41
  • @AndrewRay All legislation, or repeal thereof, requires both chambers and either the President's consent or a veto override. SCOTUS has ruled before that legislation cannot grant a single chamber the sole authority to exercise a legislative function, so I doubt they'd let a single chamber simply ignore one without even such a grant. The Senate consented to have the limit codified as a law, and I don't see a legal theory whereby it could override that without going through the usual legislative process. But I don't think it's ever been tested in the courts. Commented Oct 29, 2020 at 8:03
  • This is sad. We know what is wrong, yet we are constrained from making the needed changes.....
    – boatcoder
    Commented Nov 2, 2020 at 2:21

The senate can't, but congress can pass a law either with the president's signature or overriding the veto. Though most large courts use different systems to constitute smaller panels, and such systems, being tried and tested, are more likely to be used if the supreme court ever gets that big.

Plus, there couldn't be multiple chief justices without a constitutional amendment. A method to designate a senior justice for each panel would probably be necessary, probably by seniority as is now used to determine who assigns the majority opinion when the chief justice is in the minority.

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