After the 2026 Midterms, What Can Congress Legally Change at the Supreme Court, and What Can’t It?

The November 3, 2026 midterms have set up a new Congress that starts January 3, 2027, and with it a fresh debate over the Supreme Court: Who can be confirmed? Will Justice Clarence Thomas or Justice Samuel Alito retire? Can Congress add seats, impose term limits, write ethics rules or impeach a justice?

This article explains what the Constitution and federal law allow, what is settled and what is contested. It does not take a side on court reform or on any political question.

The short version: The Court is still nine justices with a 6–3 conservative majority, and no vacancy exists. The Senate’s constitutional role in confirmations gives it real power over any future nomination. Most other changes, such as expansion, term limits and binding ethics rules, need legislation that the president can veto, and several raise unresolved constitutional questions.

Where the Election Count Stands

As of November 12, 2026, 12:54 p.m. PKT, the Associated Press’s count shows Democrats with 255 House seats won and Republicans with 168. AP’s House count leaves 12 seats not counted as won for either party. In the Senate, AP’s count shows Democrats with a Total of 55 seats (including 2 others who caucus with them) and Republicans with 44, with one seat counted as won or held over for no party. These numbers come from AP and may have changed since then.

The label “Majority reached” beside the Democrats in the House count, and “Control reached” beside them in the Senate count, are not calls by AP.

New majorities are seated when Congress convenes on January 3, 2027. Until then, the current Senate, led by Republicans, remains in session. Whichever party organizes the Senate on January 3 sets the confirmation agenda. Senate Democratic Leader Chuck Schumer told the Associated Press that Democrats will not allow President Trump to put a “right-winger” on the Court once they take over, according to published reports.

Quick Reference: Supreme Court Changes and the Law

Question	Legal answer
Is there a Supreme Court vacancy?	No. Nine justices are sitting, and no retirement has been announced
Who picks and approves a justice?	The president nominates; the Senate gives advice and consent (Art. II, § 2, cl. 2)
How many votes confirm a justice?	A simple majority. The 60-vote cloture threshold for Supreme Court nominees was removed by Senate precedent in 2017
Can Congress change the number of justices?	Yes, by statute (28 U.S.C. § 1 sets it at nine). It needs both chambers and the president’s signature or a two-thirds override
Can Congress impose term limits by ordinary law?	Disputed. Article III says judges hold office “during good Behaviour”
Can Congress impeach a justice?	Yes. House majority to impeach; two-thirds of senators present to convict
Can Congress write binding ethics rules?	It can pass laws, subject to a veto and separation-of-powers challenges
Can Congress overturn a constitutional ruling by statute?	No. It can amend a statute the Court interpreted, but not the Court’s reading of the Constitution
Can Congress control a justice’s votes through funding?	No. Article III protects judicial independence, including a ban on cutting judges’ pay

1. Confirmations: What the Senate Controls

The president nominates, and the Senate confirms. Since the 2017 Gorsuch confirmation, Supreme Court nominees can be confirmed by a simple majority. That rule helps whichever party holds the majority. A majority can also decline to hold hearings or votes. In 2016, the Senate took no action on President Obama’s nomination of Merrick Garland to fill the seat left by Justice Antonin Scalia’s death, and the seat was filled in 2017.

The president can still nominate anyone he chooses. A compromise nominee is also constitutionally possible. The Senate has no deadline to act.

For more on how Senate control affects nominations, impeachment and legislation, see What Happens If Democrats Win the House, the Senate or Both in the 2026 Midterms? Impeachment, Investigations, Nominations and the Legal Powers of Congress Over President Trump.

2. The Lame-Duck Window and the Retirement Question

Between the election and January 3, the current Senate can still confirm nominees, including federal judges. Confirmed judges hold life tenure under Article III, so appointments finished before January remain in place.

Thomas and Alito. Justice Thomas is 78 and Justice Alito is 76. The facts as reported:

• In a Sept. 30 interview, Alito said, “I intend to stick around through this term,” meaning the term that runs through June 2027, and he answered “Yeah” when asked whether that was a firm no to a post-election retirement announcement. After the election, the New York Times and others reported he told people close to him he did not intend to announce a retirement immediately.
• Thomas has repeatedly ruled out retirement. Reporting notes that if he serves through May 2028, he would become the longest-serving justice in the Court’s history.
• Commentators disagree about the politics. Some conservatives urged a quick retirement so a successor could be confirmed in the lame duck. Others, including conservative lawyer Ed Whelan, said a lame-duck confirmation was highly unlikely, partly because some Republican senators were leaving and might not back a nominee. Some Democrats and court-reform advocates said a politically timed retirement could increase support for court reform.

Nothing here predicts whether either justice will retire. Justices are not required to retire on any political schedule, and health and personal decisions can’t be forecast.

What if a vacancy opens?

• Before January 3: the current Senate could in theory consider a nominee. Whether it could finish in time is a matter of calendar, floor time and votes.
• After January 3: the president could nominate, but a Senate majority is not legally required to act on the nomination within any time.
• Does a vacancy flip the Court? No. With one seat empty, the Court has eight justices. By statute, six justices make a quorum (28 U.S.C. § 1). An evenly split Court leaves the lower-court ruling in place and sets no nationwide precedent.

3. Lower Courts: Where Most Cases End

Most federal cases are decided by district courts and courts of appeals, and many never reach the Supreme Court. A circuit court’s ruling can control a large part of the country when the Supreme Court declines review. Appointments and confirmations at those levels shape federal law in practice. Reporting by CBS News on November 11 described a number of vacancies and pending Trump nominees as the Senate works on confirmations in the lame duck. Check current Senate and U.S. Courts figures before quoting any count.

Whoever holds the Senate majority will have more say over future district and appeals nominees, though the president keeps the nominating power.

4. State Attorneys General and the Cases the Court Hears

The Supreme Court does not pick its own cases from nowhere. Cases come through lower courts and parties, and state attorneys general bring or join many major suits. States can also bring certain disputes directly (Art. III, § 2, cl. 2; 28 U.S.C. § 1251).

Texas. Democrat Nathan Johnson, a Dallas state senator, defeated Republican Mayes Middleton in the Texas attorney general race, according to the Texas Tribune and other outlets. Texas outlets describe him as the first Democrat elected to the office since the 1990s. Johnson takes office in January and will inherit the office’s pending cases. Reporting also indicates Democrats won Texas Supreme Court races, which would narrow the Republican majority on that state court. Verify the exact seat count against the Texas Secretary of State’s official results.

What a new attorney general can and cannot do:

• He can decide whether the state continues, narrows or ends its own lawsuits, subject to court rules. A plaintiff can usually dismiss its own claims, but a court may need to approve it (Fed. R. Civ. P. 41(a)).
• He cannot end a case that other parties are pursuing, or erase existing court orders and federal statutes.
• Standing is a big gate. See United States v. Texas, 599 U.S. 670 (2023), and FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024).
• A state attorney general election changes which litigants appear. It does not change the membership of the U.S. Supreme Court, and state supreme courts are separate from it. A state court’s ruling reaches the U.S. Supreme Court only when it presents a federal question.

5. Ethics, Recusal and Oversight

Existing rules. The Court adopted its first Code of Conduct on November 13, 2023. It has no independent enforcement mechanism, and critics and defenders disagree about whether it needs one. Federal law already provides:

• Recusal: 28 U.S.C. § 455 requires a judge or justice to disqualify themselves where impartiality might reasonably be questioned. A justice decides their own recusal. See Cheney v. U.S. District Court, 541 U.S. 913 (2004) (memorandum of Scalia, J.), and the due-process floor in Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).
• Financial disclosure: the Ethics in Government Act (now codified at 5 U.S.C. §§ 13101 and following) requires annual financial disclosure by federal judges and justices, administered through the judiciary.
• Judicial misconduct complaints: the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351 to 364, covers lower-court judges, not Supreme Court justices.

What Congress can do. Committees can hold hearings and investigate judicial ethics, disclosure and administration. Democratic senators have introduced Supreme Court ethics legislation, reported as S. 5121, the Supreme Court Ethics Act, in July 2026, to create an ethics investigator and set new recusal-disclosure rules (verify the bill number and status). To become law it must pass both chambers, face the Senate’s 60-vote cloture rule for most legislation, and be signed or survive a veto override.

Limits. Congress can’t order a justice how to vote. Efforts to compel testimony from justices or access confidential deliberations raise separation-of-powers objections. Supporters say statutory safeguards are consistent with judicial independence, and critics say outside discipline of justices could undercut it. The Congressional Research Service describes these as unresolved questions. For how congressional subpoenas work generally, see Can Democrats Subpoena Trump, His Family, Banks and Private Companies in 2027? What Congress Can Legally Demand Under Trump v. Mazars, Executive Privilege and Contempt Law.

6. Court Expansion

The Constitution does not fix the Court’s size. The number has changed over time, from six to ten, and has been nine since the Judiciary Act of 1869 (now 28 U.S.C. § 1). Some lawmakers have proposed adding seats, for example making it 13.

• A bill needs both chambers and the president’s signature, or a two-thirds override in each chamber (Art. I, § 7).
• Legislation faces the Senate’s cloture rule (Rule XXII) unless the chamber changes its procedures.
• New seats wouldn’t fill themselves. The president would nominate, and the Senate would confirm.
• Franklin Roosevelt’s 1937 proposal to add justices did not pass.

Arguments for: supporters say structural reform could address concerns about the modern appointment process and balance. Arguments against: opponents say expanding for political reasons invites repeated expansion and weakens judicial independence. No expansion law has been enacted as a result of this election.

7. Term Limits

Proposals such as 18-year terms would aim to give each president regular appointments. The constitutional text says judges “hold their Offices during good Behaviour” (Art. III, § 1). Scholars disagree on whether Congress could create fixed active-service terms by statute, for example by letting justices keep Article III status in a different role, or whether that would unlawfully shorten constitutional tenure. A constitutional amendment (two-thirds of both chambers and ratification by three-fourths of the states under Article V) is the clearer route. No Supreme Court ruling has approved a statutory term-limit scheme for the justices.

8. Impeachment

Congress can impeach justices (Art. I, § 2, cl. 5; Art. I, § 3, cls. 6 and 7; Art. II, § 4). A House majority impeaches, and conviction and removal require two-thirds of senators present. A disagreement with an opinion is not, by itself, a recognized impeachable offense under the Constitution’s standard of treason, bribery, or other high crimes and misdemeanors, but Congress decides what meets that standard.

History: the House impeached Justice Samuel Chase in 1804 over his conduct on the bench, and the Senate acquitted him in 1805. No justice has been removed by impeachment.

9. Funding and Jurisdiction

• Funding: Congress funds the judiciary through appropriations (Art. I, § 9, cl. 7). Article III bars reducing a federal judge’s pay while in office. Spending laws can’t lawfully dictate outcomes, and are subject to a veto.
• Jurisdiction: Article III, § 2, cl. 2 lets Congress make “Exceptions” and “Regulations” to the Court’s appellate jurisdiction. Ex parte McCardle, 74 U.S. 506 (1869), upheld withdrawing a particular statutory path of review. But United States v. Klein, 80 U.S. 128 (1871), suggests Congress cannot direct how courts decide cases, and Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995), bars reopening final judgments. How far jurisdiction stripping can go remains debated.
• Overriding rulings: Congress can amend a statute the Court interpreted, but it cannot overrule the Court’s reading of the Constitution by ordinary law (City of Boerne v. Flores, 521 U.S. 507 (1997); Dickerson v. United States, 530 U.S. 428 (2000)). Existing precedents such as Dobbs v. Jackson Women’s Health Organization stay in force unless the Court itself changes them or the Constitution is amended.

For how divided government generally limits presidential and congressional power, see Can Trump Govern Without Congress? Presidential Powers Under a Divided Government Explained.

What Changes and What Doesn’t

Issue	What may change after the election	What does not automatically change
Future nominations	Senate confirmation agenda	The president’s power to nominate
Ethics and recusal	Hearings, legislation proposals	The Court’s self-governed recusal decisions
State litigation	Which cases states bring, continue or drop	The membership of the U.S. Supreme Court
Existing precedents	Nothing by statute alone	Constitutional rulings by the Court
Court size and terms	Bills can be introduced	The number of justices, which stays at nine

Timeline

Date	Development
November 3, 2026	Election Day
November 2026 to January 3, 2027	Current Senate remains in session; lame-duck confirmations possible
January 3, 2027	New Congress convenes
June 2027	End of the Supreme Court’s current term, a common time for retirement announcements
2027 to 2028	Possible hearings and bills on ethics, court structure and nominations
November 2028	Next presidential election

Frequently Asked Questions

Is there a Supreme Court vacancy?

No. Nine justices are sitting, and no retirement has been announced.

Is Samuel Alito retiring?

He said in a September 30 interview he intends to serve through the current term, and later reports say he has no plans to announce a retirement right away. Nothing has been announced.

Is Clarence Thomas retiring?

He has repeatedly said he has no plans to retire. No retirement has been announced.

Can the Senate block a Supreme Court nominee?

Yes. The Senate must confirm, and the majority party controls the agenda. The president can still nominate.

Can a Supreme Court justice be confirmed before January 3?

Only if a vacancy arose and the current Senate acted in time. No vacancy exists today.

Can Congress add Supreme Court justices?

Yes, by statute, but a bill needs both chambers and the president’s signature or a veto override. It also faces Senate procedure.

Can Congress impose Supreme Court term limits?

Whether an ordinary statute could do it is disputed. A constitutional amendment is the clearer path.

Can Congress impeach a justice?

Yes, with a House majority to impeach and two-thirds of senators present to convict. No justice has been removed this way.

Can Congress make Supreme Court ethics rules binding?

It can pass laws, but they face the veto, the Senate’s 60-vote rule and possible separation-of-powers challenges.

Can Congress overturn a Supreme Court ruling?

Not a constitutional ruling by statute. It can amend a statute the Court interpreted.

Does a new state attorney general change the Supreme Court?

No. It can change which cases the state brings or continues.

Does the election change the 6–3 majority?

Not by itself. The majority changes only through vacancies and confirmations or other lawful changes.

Sources and Legal References

1. Associated Press, Calling Control of Congress in the 2026 Midterm Elections
2. U.S. Supreme Court, Current Justices
3. U.S. Supreme Court, Code of Conduct for Justices
4. Bloomberg Law, Trump’s Ability to Shape Supreme Court Impeded by Midterms (Nov. 4, 2026)
5. Deseret News, Alito will not be retiring immediately despite election outcome (Nov. 5, 2026)
6. The Grio, Democrats’ midterm victory puts Supreme Court’s conservative majority under new pressure (Nov. 8, 2026)
7. Texas Tribune, In major upset, Nathan Johnson takes Texas attorney general’s office for Democrats
8. Texas Secretary of State, November 3, 2026 election results
9. U.S. Senate, Judicial Nominations: Historical Overview
10. U.S. Senate, Supreme Court Nominations, 1789 to Present
11. Congressional Research Service, Congressional Control Over the Supreme Court
12. 28 U.S.C. § 1, Number of justices and quorum
13. U.S. Const. art. I, §§ 2, 3, 7, 9; art. II, §§ 2, 4; art. III, §§ 1, 2; art. V; 28 U.S.C. §§ 351 to 364, 455, 1251; 5 U.S.C. §§ 13101 et seq.; Fed. R. Civ. P. 41(a); Senate Rule XXII
14. Ex parte McCardle, 74 U.S. 506 (1869); United States v. Klein, 80 U.S. 128 (1871); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995); City of Boerne v. Flores, 521 U.S. 507 (1997); Dickerson v. United States, 530 U.S. 428 (2000); Cheney v. U.S. District Court, 541 U.S. 913 (2004); Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009); United States v. Texas, 599 U.S. 670 (2023); FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024)

Disclaimer: AllAboutLawyer.com provides general U.S. constitutional and legal information, not legal advice, and Israr Ahmad is not an attorney. No attorney-client relationship is created by reading this article. This article describes the law and reported events without endorsing any political position or predicting any justice’s decisions.