Congressional Control over the Supreme Court (CRS R47382)

The Constitution’s Framers structured the Constitution to promote the separation of powers and protect the federal courts from undue influence by Congress and the executive branch. Among the federal courts, the Constitution grants the Supreme Court special status. As a historical matter, Congress has also traditionally recognized that the Supreme Court plays a unique role within the constitutional system.

However, the Constitution does not impose complete separation between the judiciary and the political branches. Although it establishes a federal judicial branch that is separate from the legislative and executive branches and benefits from certain important protections, the Constitution also grants the political branches, and especially Congress, substantial power to regulate and otherwise influence the federal courts. Supreme Court decisions and longstanding practice also establish that Congress has the power to regulate many aspects of the Supreme Court’s structure and procedures.

Discussion of Supreme Court regulation and reform has attracted significant public attention at various points in American history and has garnered renewed public attention in the past decade. Key areas of discussion include the Court’s procedures for handling emergency litigation; concerns about politicization, both in the selection and confirmation of judicial nominees and in the Court’s rulings; and some observers’ substantive disagreement with certain Court decisions.

Many prominent Court reform proposals from recent years fall into two main categories: those that would change the size of the Supreme Court (sometimes called “court packing”) and those that would impose term limits or age limits for Supreme Court Justices. Congress has broad authority to set or change the size of the Supreme Court through ordinary legislation, but implementation of term or age limits would likely require a constitutional amendment. Some proposals would change the size of the Court or modify Justices’ tenure while also making other structural changes, such as having Justices rotate between the Supreme Court and the lower federal courts, dividing the Supreme Court into panels, or seeking to ensure ideological balance on the Court. Those proposals might raise various constitutional questions on a case-by-case basis.

Legislators and commentators have also advanced other proposals to change the Supreme Court’s jurisdiction or procedures. Prominent proposals include making changes to the Court’s motions docket (which some commentators call the “shadow docket”); limiting the Court’s appellate jurisdiction over certain categories of cases (sometimes called “jurisdiction stripping”); imposing voting rules on the Court, such as requiring the agreement of a supermajority of Justices before the Court can declare a law unconstitutional; allowing Congress to override Supreme Court decisions; imposing new judicial ethics rules for Justices; and expanding transparency through means such as allowing video recordings of Supreme Court proceedings.

  • Congressional Control over the Supreme Court,” CRS Report R47382, January 11, 2023 (56-page PDF)

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