The Supreme Court Questions Your Brother-in-Law Keeps Asking, Answered

Every family has one. He is not a bad guy. He just has a firm opinion about the Supreme Court, delivered with the confidence of a man who watched a clip, and he is going to share it right after the turkey, or right before the brisket, or the minute somebody mentions the news. "Why do they get to serve for life?" "Why nine?" "Who makes them follow the ruling?" And then, the killer: "Well, can't Congress just overrule them?"

Here is my advice. Do not roll your eyes. Those are good questions. They are, in fact, the right questions, the ones the people who wrote the Constitution argued over for months. The problem is that most of us were never taught the answers, so we reach for slogans. So I have put together the questions he keeps asking, in the order they tend to come up, with short answers you can use at the table. I have tried to make each answer accurate enough that a law professor would nod and short enough that your brother-in-law won't wander off to the dessert table.

Questions about who sits on the Court

Start with the structure, because the structure is where most of the dinner-table myths begin. Nothing in this first group is controversial among lawyers. It is simply rarely taught.

1. Why are there nine justices?

Because Congress said so, and it could say something else. The Constitution establishes "one supreme Court" and leaves the number to Congress. The first Judiciary Act, in 1789, set it at six. The number changed several times over the next eighty years, and the Judiciary Act of 1869 fixed it at nine, where it has stayed. The story of the most famous attempt to change the number is in FDR Tried to Pack the Supreme Court in 1937 and His Own Party Said No. The short answer for the dinner table: nine is a tradition backed by a statute, not a constitutional requirement, and the tradition has held since 1869 because both parties eventually realize that changing it is a weapon that can be turned around.

2. Why do justices serve for life?

Because the Framers wanted judges who would not have to worry about pleasing anyone. Article III says federal judges "shall hold their Offices during good Behaviour," and that their pay cannot be cut while they serve. Alexander Hamilton explained the reason in Federalist No. 78: the judiciary has neither the sword nor the purse, so it needs independence to resist pressure from the other two branches. A judge who is looking for a job after leaving the bench, or who faces an election, has a reason to bend. A judge with a lifetime appointment has no such reason.

Is "good behaviour" a loophole for removal? Yes, through impeachment by the House and conviction by the Senate. Only one Supreme Court justice has ever been impeached, Samuel Chase in 1804, and the Senate acquitted him. Some critics propose eighteen-year terms. That would require either a constitutional amendment or a clever statute, and the question of which is a good argument for another day.

Questions about how it works

The next group is about the machinery. A court with no army, no budget of its own and no power to start a case on its own has to rely on rules and habits, and the rules tell you a great deal about how much power it really has.

3. How does the Court pick its cases?

Most cases reach the Supreme Court because someone asks it to take them. The way you ask is by filing a petition for a writ of certiorari, a Latin word that means, roughly, "to be informed." The justices read the petitions, or their law clerks do, and vote on which ones to hear. The Court receives thousands of petitions every year and agrees to hear well under a hundred of them. The Court takes cases where lower courts disagree with one another, where a federal law has been struck down, or where an important question has not been answered.

A few kinds of cases are different. The Constitution gives the Court "original jurisdiction" in cases involving states and ambassadors, which means they begin there. Those are rare.

4. What is the "rule of four"?

It is a custom, not a constitutional rule, that the Court will hear a case if four of the nine justices vote to take it. You don't need a majority to get a hearing. The rule gives a minority of the Court the power to put a question on the docket. The reasoning is that if four justices think a question is important enough to settle, it probably is. Note that the vote to take a case is not a vote on who should win it. A justice may vote to hear a case he or she expects to lose.

5. What happens if the Court ties 4 to 4?

Sometimes the Court has fewer than nine justices, because of a vacancy or a recusal. If the justices split evenly, the lower court's decision stands, and the Court issues a short order saying it was affirmed by an equally divided Court. There is no opinion, no explanation and no precedent. It is as if the case was never taken, except for the parties in the case, who live with the result. That is why a vacancy matters so much, and why the fights over filling one are so heated. You can see how those fights unfold in Every Step in Confirming a Federal Judge, from Vacancy to Oath.

Questions about power and its limits

This is the group your brother-in-law cares about most. Who can say no to the Court, and what happens when somebody does?

6. Who enforces the Court's rulings?

The executive branch, mainly. The Court has no army and no police force, and Hamilton said as much in Federalist No. 78. The judiciary depends on the President and the Executive Branch to carry out its judgments. The U.S. Marshals Service enforces federal court orders. When a state or local government defies a ruling, the President can send federal officers.

A famous example: in 1957, when Arkansas officials resisted a federal court order to integrate Little Rock Central High School, President Eisenhower sent federal troops to enforce it. The next year, in Cooper v. Aaron, all nine justices stated that state officials are bound by the Court's interpretation of the Constitution. A tale gets told that President Andrew Jackson responded to a Court decision by saying that the Chief Justice had made his decision and could now enforce it. Historians doubt he said it, so don't use it at dinner. The real point stands: courts work because the other branches choose to obey them.

7. Can Congress overrule a Supreme Court decision?

It depends on what kind of decision it is.

If the Court has interpreted a statute, then yes. Congress can pass a new law that changes the result. In Ledbetter v. Goodyear Tire & Rubber Co. (2007), the Court held that a pay discrimination claim was filed too late. In 2009 Congress passed the Lilly Ledbetter Fair Pay Act, which changed the rule. That is a statute overriding a decision.

If the Court has interpreted the Constitution, then Congress cannot simply pass a law. The remedy is a constitutional amendment, which is hard on purpose. We cover how in Article V Explained, and the Amendment That Took More Than 200 Years. It has happened. The 11th Amendment, ratified in 1795, reversed Chisholm v. Georgia (1793), which had let a citizen of one state sue another state in federal court. The 16th Amendment, ratified in 1913, overcame the Court's 1895 decision in Pollock v. Farmers' Loan & Trust Co., which had struck down a federal income tax. The 26th Amendment, ratified in 1971, lowered the voting age to eighteen after Oregon v. Mitchell (1970) held that Congress could not do it for state elections by statute alone.

So yes, but the more important the question, the higher the bar.

8. What is stare decisis?

It is Latin for "to stand by things decided." It is the principle that courts should follow their earlier decisions, so that the law is stable and people can plan their lives around it. It is a strong rule but not an absolute one. The Court has overruled itself many times. In Brown v. Board of Education (1954) it overruled Plessy v. Ferguson (1896). In Dobbs v. Jackson Women's Health Organization (2022) it overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

Conservatives are often accused of ignoring precedent, and liberals are often accused of treating it as sacred only when it suits them. The honest view is that precedent matters, but a decision that was wrong when it was decided doesn't become right by getting older. The question is how wrong, how much people relied on it, and whether it can be worked out in practice. That's a judgment call, and reasonable judges disagree. For a longer take on method, see Originalism Explained for People Who Skipped Law School.

Questions about process and habit

Last come the small questions that turn out to matter. A rule about when a justice steps aside, a date on the calendar, and a custom about who holds the pen can each change what a decision means.

9. How does recusal work?

Federal law, 28 U.S.C. section 455, says a justice or judge must disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned. It also lists specific cases, such as where the judge has a financial interest in the case or has served as a lawyer in the matter. For the Supreme Court, there is a quirk: the decision to recuse is made by the justice alone, with no appeal or review by the other justices. Nobody can replace a recused justice, so the Court may be left with eight, and see question five. In 2023 the Court adopted a written code of conduct for the first time, though critics point out it has no outside enforcement. Whatever you think of that, the principle holds: a judge shouldn't decide a case where he has a stake.

10. When does the Court's term begin?

On the first Monday in October. That date is set by federal statute. The Court hears arguments from October through April, and by tradition it issues all of its decisions by the end of June or the first days of July, before the summer recess. The Court also has what's called the "shadow docket," or emergency docket, where it handles urgent requests in between. If you want to understand how a decision is built, read How to Read a Supreme Court Opinion Without a Law Degree.

11. Who writes the opinion?

If the Chief Justice is in the majority, he decides who writes. If he is in the dissent, the most senior justice in the majority makes the assignment. That's the reason the Chief often tries to be in the majority, and why lots of important opinions, such as Marbury v. Madison, are written by the Chief. A justice who agrees with the result but not the reasoning may write a separate "concurrence." A justice who disagrees writes a "dissent." Each is a part of the public record and a chance for a justice to argue with the others. Dissents have often turned into the law of tomorrow, a point worth remembering when you read one.

12. Does a justice have to be a lawyer?

No, surprisingly. The Constitution sets no qualifications for justices at all: no age, no citizenship requirement, no law degree. In practice every justice for a very long time has been a lawyer, and in the modern era, nearly all have served as federal appeals judges or held other senior legal posts. That's a norm of the Senate and the president, not a rule of the Constitution.

One more argument you will hear

"But the Court isn't elected. Isn't that undemocratic?" It's a fair question, and the answer is that the Constitution is a limit on what majorities can do. If a majority could vote away your freedom of speech, it wouldn't be a right. Courts exist to enforce the limits the people themselves wrote down. The judges who apply those limits are chosen by elected officials, the President and the Senate, and the people can change the Constitution itself. The system is neither purely democratic nor purely aristocratic. It is a balance, and Madison's genius was in building a government where, as we explain in Madison Built a Government Where Ambition Fights Ambition, and It Works, the branches keep each other in check.

The bottom line

• The Court's size, its term and its process come from the Constitution, statutes and custom, and the last two can be changed. Know which is which before you argue.
• Congress can answer the Court on statutes with a new law and on the Constitution with an amendment. It cannot simply ignore either.
• Ties, recusals and vacancies matter, because a 4-4 Court sets no precedent. That's why who sits on the Court matters so much.
• Read the primary sources: the Constitution's Article III, the Court's own website for opinions, and Congress.gov for statutes. They are free.
• Next time your brother-in-law says the Court should be reformed, ask him which part, and what he'd do when the other side holds power.