“Should a Democrat be elected as the next president and decide to expand the Supreme Court, is there a way for SCOTUS to block this move as somehow being unconstitutional?” — Lee
Hi Lee,
The president can’t expand the court on their own. But if (a presumably Democratic-controlled) Congress passes a law that adds seats to the Supreme Court, then the justices can’t block that. The reason there are nine seats on the court is because of an 1869 law that says so. The number fluctuated before then.
There’s actually more legal debate over modest reform of term limits for justices. Depending on how a potential law on term limits is implemented, it could run up against the constitutional provision that says federal judges hold their positions “during good Behaviour,” which has been understood to mean life tenure. To be sure, there are term limit proposals that account for this.
But whatever the justices made of a term limit law if one were to pass, they wouldn’t be able to thwart one that adds seats to the court, regardless of how uncomfortable they might be with such a change. Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal Newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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