this were done through a constitutional amendment, the Commission does not perceive there to be any significant constitutional issues in applying the amendment to sitting Justices.
2. Sitting Justices Remain on the Court as New Term-Limited Justices Are Appointed
The Commission is aware that while the simplest approach would be to apply a term limits amendment to the sitting Justices, this strategy might generate political conflict that would make passage of an amendment difficult.
If the amendment is designed not to apply to currently sitting Justices, the Court could expand temporarily. New Justices would start being appointed every two years for eighteen-year terms after the amendment’s effective date. As legacy Justices leave, their seats would not be filled as long as at least nine Justices would remain on the Court. It is likely that the Court would never drop below nine Justices. One study concludes that, under this approach, it would take around thirty-five years until the full Court consisted entirely of Justices serving for fixed terms.[45]
This approach does come with potential costs, however. It would likely produce a considerably expanded Court for a period of years. In Chapter 2, we consider some of the consequences of a larger bench, including that it could hamper the Court’s decisionmaking (depending on how large the expansion is). That said, many of the highest courts in other democracies have eleven or more members, and in many cases they function effectively by sitting in panels, a prospect we also explore in Chapter 2.[46] On the other hand, no state supreme court has more than nine judges and only seven are even that large; most have seven judges and seventeen have five.[47] As one former federal judge testified to the Commission, above a certain size, effective collective deliberation becomes more difficult.[48] In addition, in some years, the Court might also have an even number of Justices, which would raise the issues discussed above about the pros and cons of an even-numbered Court.[49] It is also uncertain how the public would perceive the Court if its size fluctuated from year to year for many years. Closely divided decisions on a Court that sometimes has nine members, sometimes eleven, sometimes thirteen, might make the Court appear less stable and generate perceptions that outcomes turn on the fortuity of how many Justices happen to be on the Court at any particular moment.
