Scholars have even proposed expanding the size of the Court to 11 or more Justices, since a larger Court reduces the likelihood that any single appointee would fundamentally change the Court’s direction. In addition to controlling the size of the Court, Congress could also authorize the President to nominate new Justices on a regular timetable – say, one during each two-year term of Congress, regardless of whether an existing Justice dies or retires. Legal scholars believe that Congress could implement that system, which indirectly sets a term limit for Justices, without a Constitutional amendment. In the current system, appointments to the Supreme Court depend on the unpredictable death or voluntary retirement of current Justices. The Constitution gives the power of appointment jointly to the President and the Senate, and judges should not be allowed to influence the timing or political affiliation of their successors.
When Alexander Hamilton promoted the new Constitution to a skeptical public, he promised that the judiciary would be the “least dangerous” branch of the federal government because it depends on the other branches to enforce its judgments. For too long, we’ve allowed federal courts to have the last word on important issues. Congress is long overdue to use its constitutional powers to check the federal courts through control over their creation, composition, and jurisdiction. The current unexpected Supreme Court vacancy is a golden opportunity for Congress to reassert its power over the number of Justices.
Listen to the radio commentary here: