Mechanics of changing the composition of the Supreme Court

[TML]

This election cycle, various Democratic candidates have put out various plans to change the composition of the Supreme Court which go beyond the traditional method of appointments in response to vacancies. Some have suggested adding additional justices outright, while at least one other candidate (Sanders) has mentioned what he calls rotating judges between the SC and lower courts.

Leaving aside the issue of whether one supports or opposes these plans, I've been wondering how these plans would be implemented. Would they be done via executive action, or would Congress be required to pass legislation in order to achieve these things?

[Sir Mohamed]

To the best if my knowledge, this depends on what changes to the current system are being made. Adding seats is a simple law passed by congress because the constitution doesn't mandate the number of justices. Changing the appointment mode would most likely require a constitutional amendment, because the constitution itsself says the justices are appointed by the prez and confirmed by the senate. Ergo, what means, the latter is DOA.

[Orser67]

IIRC, pretty much everything about the courts is in Article Three of the Constitution. Article Three:

-Establishes the Supreme Court (but no specific positions or requirements for number of justices, though the office of Chief Justice is established in Article One),
-Gives the Supreme Court original jurisdiction in a few areas. It gives appellate jurisdiction to all other "cases and controversies" arising from federal laws/treaties/etc, but that jurisdiction is subject to the laws passed by Congress.
-Requires judges to be paid and establishes that they serve lifetime appointments,
-Empowers Congress to establish inferior courts

Additionally, Article 2 establishes that the president appoints Supreme Court justices with the advice and consent of the Senate.

So any kind of term limits, or a change to how Supreme Court justices are appointed, would require a constitutional amendment. But Congress could theoretically, for example, abolish all courts except the Supreme Court and establish new courts, expand the size of the Supreme Court to 100 judges, or strip the Supreme Court of its appellate jurisdiction.

[SteveRogers]

Sanders’s plan (rotating out SCOTUS justices to the lower courts) and Buttigieg’s plan (allowing the appointed justices to vote to select additional justices) would almost certainly require constitutional amendments.

I do wonder if they are onto something though. Could congress authorize SCOTUS to assign lower court judges to sit on the Court as visiting justices by designation (similar to how district judges routinely sit on circuit court panels by designation in order to ease the appellate caseload)? I’m envisioning something where we keep our 9 permanent Justices, but expand the Court size to 15 by pulling in a group of 6 additional judges from the circuit courts on a rotating basis.

[True Federalist (진정한 연방 주의자)]

Sanders’s plan (rotating out SCOTUS justices to the lower courts) and Buttigieg’s plan (allowing the appointed justices to vote to select additional justices) would almost certainly require constitutional amendments.

I do wonder if they are onto something though. Could congress authorize SCOTUS to assign lower court judges to sit on the Court as visiting justices by designation (similar to how district judges routinely sit on circuit court panels by designation in order to ease the appellate caseload)? I’m envisioning something where we keep our 9 permanent Justices, but expand the Court size to 15 by pulling in a group of 6 additional judges from the circuit courts on a rotating basis.

Originally, the Judiciary Act of 1789 gave each Supreme Court Justice a role as a Circuit Judge, one per circuit. So long as they don't remove existing Justices, there's no Constitutional bar to such a plan, just massive political problems as with FDR's plan.

[Slander and/or Libel]

One of the proposals I saw would establish that a new Justice would be appointed every two years, but that only the nine most junior non-recused Justices would vote on cases. That's a way to have term limits but get around the lifetime appointment piece.