Unpacking the Court

With this week’s commencement of a new Supreme Court term and the pending confirmation of an associate Justice, perhaps consideration of a modest proposal is appropriate.

Every so often Congress varies the size of the Supreme Court. It’s been as large as ten and as small as five justices. Currently it’s at nine. Eliminating three Supreme Court offices returns the Court to its original size established in the Judiciary Act of 1789, pleasing originalists and small government proponents.

Generally, a reduction in force takes the positions of the employees with the least seniority. Here the offices of the three most junior Justices would disappear.

Some might suggest the constitution impedes such legislation:

“'The Judges, both of the supreme and inferior courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.”
Const. Art. III, Sec. 1.

But it does not.

Following adoption of the 16th Amendment, the Supreme Court decided whether a judge’s salary could be diminished by imposition of the income tax. In one of his grand dissents, Justice Oliver Wendel Holmes, Jr. explains the point of this language is not to protect judges from provisions of general applicability (e.g., taxes), but to shield them from the prospect of such individualized sanction as might alter their decision in a particular case. Evans v. Gore, 253 US 245, 40 S. Ct. 550, 64 L. Ed. 887 - Supreme Court, 1920.

Unpacking the Court, that is reducing it from nine to six Justices, appears to be more general rather than individualized, and thus permissible under Justice Holmes' rubric.

Is it time to return the Court to six Justices?


Constitution Annotated