It’s also not an entirely unfounded idea. As Warren noted, the Constitution (in Article III, Section 1) gives Congress the authority to change the size of the Supreme Court at any time. In fact, Congress has used that authority seven times throughout history. That said, Democrats attempted to add four seats to the bench in 2021, and it ultimately failed before launch.
“We absolutely must move to codify abortion rights into federal law, but without Court expansion, that progress will not be safe from this radical, anti-choice majority,” O’Connor adds. “Adding seats to the Supreme Court is the most direct path forward, and it’s the only response that recognizes the urgency of the threat this Court poses.”
Placing Term Limits on Judges
Demand Justice and many other organizations have called for term limits on Supreme Court justices.
“Supreme Court confirmations have gotten too political,” Demand Justice explains on its website. “Instead of having justices serve for life and politically time their retirements, we should create term limits that ensure justices serve a uniform number of years. Term limits would give each president the opportunity to appoint the same number of Supreme Court justices each term, reducing partisan gamesmanship around each individual confirmation and making the Court more democratically representative.”
Again, this is an idea with wide-ranging support but very little current action. In 2021, a bipartisan panel of legal scholars looked into various potential changes to the Supreme Court. It submitted its findings under the Presidential Commission on the Supreme Court of the United States to President Biden, which stated that term limits were one of the few areas almost everyone could agree on for change.
“Among the proposals for reforming the Supreme Court, non-renewable limited terms—or ‘term limits’—for Supreme Court Justices have enjoyed considerable, bipartisan support. Advocacy groups, nonprofits, and membership organizations have expressed their support for term limits,” the findings state. As for how long those term limits should be, the panel found that an 18-year, non-renewable term “warrants serious consideration.” It’s an idea that’s also been endorsed by “major think tanks and their leaders,” as have “both liberal and conservative constitutional scholars.”
Additionally, the panel found, “When the National Constitution Center organized separate groups of ‘conservative’ scholars and ‘progressive’ scholars to draft their own proposals for improving the Constitution, both groups concluded that Supreme Court Justices should be limited to eighteen-year terms.”
So, what’s the issue? The panel found that both scholars and commentators question the idea of “altering the system of life tenure, which has been in place since the Constitution established the Supreme Court and the judicial power.”
Weakening the Supreme Court’s Power
The Supreme Court has an immense amount of power. Just nine people get to interpret the meaning of a document written more than 200 years ago. One way experts, including those on Presidential Commission on the Supreme Court, said the court could be improved is by limiting its power in the first place.
“The Court serves as an important counterweight to majoritarian impulses, safeguards the Constitution, and helps ensure the rule of law,” the panel wrote. “But others argue that the Supreme Court has exerted too much power in our system of constitutional governance by interfering with or taking control of matters that should be resolved by the elected branches and the political process. Under this view, the Court has emerged as an obstacle to the realization of important social goals and undermined the ability of Congress and other political actors to protect rights.”