Congress 'should police the Supreme Court': Dem. Rep Katie Porter, on The View

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 long-

standing 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.