Where Congress controls the court

Nuts and Bolts is a recurring series by Stephen Wermiel providing insights into the mechanics of how the Supreme Court works.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

Discussion of the Supreme Court today often turns into debate about the importance of judicial independence versus the authority and power of Congress. Sometimes lost in the debate are the numerous ways in which Congress already regulates the court.

But why may Congress regulate aspects of the court’s work? Aren’t the three branches “separate but equal”? Not exactly. Article III of the Constitution provides for “one Supreme Court” and “such inferior courts as the Congress may from time to time ordain and establish.” Since the first Congress passed the Judiciary Act of 1789, it has been established practice that while the Constitution created the Supreme Court, Congress can regulate how the justices operate. This power of Congress ranges from deciding when the court term begins, to how much the justices are paid, to the size of the court, to how the institution is funded.

A good place to start is the opening of the new court term on Oct. 6. The start of the term on the first Monday of October is set by Congress as a matter of federal law. Throughout the nation’s history, Congress has set different start dates. (The changes were usually uncontroversial. The year 1802 was an exception. Congress created new judgeships in the Judiciary Act of 1801 that were filled by President John Adams. When his rival Thomas Jefferson became president the same year, his supporters in Congress repealed the judgeships and then prevented the court from meeting in 1802 to keep the court from ruling that the repeal violated the guarantee of life tenure in Article III.) Since 1917, the term has begun on the first Monday in October.

Congress also determines the salary of the justices, although this power is limited in a significant way. Article III of the Constitution says the salary of justices (and other federal judges) “shall not be diminished” during their tenure. This provision protects justices from having their salary cut, either for budgetary reasons or as retaliation from an angry Congress that dislikes the court’s decisions. The current figures are $317,500 for the chief justice and $303,600 for the associate justices. Since 1989, federal law has provided for periodic cost-of-living adjustments. This power sparks occasional drama, for example if Congress tries to take back or reduce an already triggered cost-of-living increase, effectively reducing salaries.

There has been much controversy about ethical standards for the justices, prompted in part by news reports of expensive vacations and other gifts accepted by Justice Clarence Thomas. Regulation of ethical standards for the court is a hybrid picture. Federal law requires federal judges, including the justices, to disqualify themselves “in any proceeding in which his impartiality might reasonably be questioned.” The law also requires the justices to file annual financial disclosure statements. However, many aspects of the justices’ conduct are not covered by a code of conduct that applies to other federal judges. For example, justices may decide for themselves when membership in a private club is inappropriate. Under significant pressure from Congress and public opinion, the court adopted its own code of conduct in November 2023, but it has been subjected to heavy criticism because it leaves most ethical judgments to the individual justices and lacks any real enforcement mechanism.

While justices (and federal judges) are free to decide when to retire, their retirement benefits are also set by Congress. The justices are subject to what is known as the “rule of 80.” The rule allows justices to retire at full salary if their age and tenure add up to 80; they must be at least 65 years of age and have at least 10 years of service. The law also allows them to remain eligible to hear cases on lower courts by becoming a “senior” judge, a semi-retired status in which a justice may continue to receive full salary by satisfying threshold caseload levels.

The Supreme Court is dependent on Congress for its funding. The court’s current annual budget is close to $153 million. A small portion of this amount is not subject to any discretion by Congress because it funds the salaries of the justices – which, as already discussed, cannot be reduced. The remainder of the funds pay salaries and operating expenses for the court and cover the cost of such things as building improvements and maintenance. For the next federal fiscal year, which begins on Oct. 1, the court has asked Congress for an appropriation of $26 million to provide security for the court and the justices and their families in their homes.

By unwritten tradition to preserve the separation of powers, the Supreme Court budget is reviewed with a lighter touch and not subject to the kind of bitter budget battles that take place in Congress over executive branch funding (as constitutionally the president is directly accountable to Congress). The budget process sometimes produces one of the more unusual spectacles involving the court and Congress. In some years, two justices appear before House and Senate committees, ostensibly to answer questions about the court’s budget requests. Since members of Congress almost never get to question sitting justices about the court, the legislators often cannot resist asking questions unrelated to the court’s finances. Often those are questions that the justices decline to answer because they involve confidential matters. The result is sometimes an awkward standoff.

Some interactions between the court and Congress are especially controversial. Congress has the power to determine the number of justices on the court. The number has fluctuated numerous times during the court’s history. The first court had six members. Congress has reduced the number to five and raised it to 10. Since 1869, Congress has maintained the number at nine. That said, Article III limits the power of Congress in an important way: justices have life tenure, so Congress cannot take a seat away from a sitting member of the court.

In the last few years, some proposals for court reform have suggested increasing the size of the court. These proposals are generally a response to President Donald Trump’s impact on the court’s makeup, having appointed Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Liberal critics of the conservative court hoped that by increasing the size of it, President Joe Biden might have had a chance to appoint progressive justices. Critics of proposals to expand the court point to the widely criticized and unsuccessful attempt by President Franklin Roosevelt to add justices in 1937. Even Roosevelt’s allies opposed his court-packing plan because it would have undercut the independence and integrity of the court.

Life tenure is also a focus of current controversy that touches on the power of Congress. A growing number of reformers have called for modifying life tenure to impose term limits for the justices. One aspect of the debate over these proposals is whether change can be achieved by federal law or whether it requires a constitutional amendment. The leading proposal is for justices to serve for 18 years. A constitutional amendment clearly could achieve this result by eliminating Article III’s guarantee of life tenure. But some advocates say the goal could be achieved by Congress, having justices retain their judicial status after 18 years but not serving as one of the nine front-line decisionmakers.

There are other ways in which federal law controls the work of the justices, most notably questions of the court’s jurisdiction for some types of cases. The Constitution gives the Supreme Court the power to be the court of first resort for some cases, such as suits between states, and Congress may not change that. However, Congress has some authority to regulate federal court jurisdiction, which affects whether some cases can be heard in the Supreme Court. One example is the undisputed right of Congress to set the dollar amount for lawsuits in federal court between citizens of different states, known as diversity jurisdiction. These cases must also involve a disputed financial amount of at least $75,000, an amount that has been raised many times by Congress, most recently in 1996 when it was increased from $50,000.

How far this authority extends is a subject of some debate. A current controversial idea from some Senate Democrats is in proposed legislation called the No Kings Act; it would strip the Supreme Court of jurisdiction to enforce the presidential immunity that the justices found in their landmark 2024 ruling.

This is not an exhaustive list of how Congress may control the Supreme Court, but it provides an overview of many ways in which the legislature can exert authority over how the justices operate.