Rotation of US Supreme Court justices?

According to the transcript of the Democratic pre-candidates’ debate (night 2), Bernie Sanders said:

I do not believe in packing the court. We got a terrible 5-4 majority conservative court right now. But I do believe that constitutionally we have the power to rotate judges to other courts. And that brings in new blood into the Supreme Court…

I would not pretend to know what Bernie meant. He says some strange things. But the Constitution is pretty brief on structure of courts. Let me try to imagine what he meant, and consider whether it could be constitutional.

Could legislation establish that there is a wider panel of appellate justices from which Supreme Court justices are drawn for periods of time? I am certainly not a constitutional lawyer, but maybe.

In Article III, Section 1, the US Constitution states, in part,

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…

So we know from this that how “inferior courts” are structured is up to Congress, and that individual judges can’t be subjected to a term of some set length, without a constitutional amendment.

We also know, from Article II, Section 2, that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.” No other judges of any court are mentioned. So legislation could establish the inferior court judges are appointed by the Supreme Court, for example (a model that is actually used in some countries). But the point about “rotation” raised by Sanders is the reverse: could members of the Supreme Court be drawn from other courts, rather than be sitting on a permanent body?

I do not see why not. The judges as individuals can’t be dismissed except for violating “good behaviour”. But could not Congress establish that the President, at set periods, appoints (with advice and consent) judges from the Circuit Courts to sit on the Supreme Court, who at set periods rotate back to their “inferior” courts? The only obstacle that becomes immediately apparent to me is if the specific court (Supreme or inferior) a judge sits on is considered part of his or her “Compensation” (capital C in original, Article III, Section 1). But if all judges in these courts are accorded the same salary and benefits, then maybe the Constitution actually does permit some sort of rotation.

Now, I am not saying that Sanders is clever enough to have thought it though the way I just articulated. Nor I am claiming that I have not overlooked some other constitutional obstacle. But the Constitution is a lot more vague than folks might think when it comes to stipulating how the federal judiciary is structured. Most of that is left to Congress.

17 thoughts on “Rotation of US Supreme Court justices?

  1. The rotation idea has serious academic backing, but I think it’s a terrible idea. If it is set up by legislation then that legislation can be amended. Anyone who thinks a party that can come up with a last year rule for judicial appointments that applies to Obama but not Trump could not imagine legislation that rotated favourable justices onto the supreme court is a fool.

    I am much more attracted to the idea of simply guaranteeing that there is a supreme court appointment every year.

    A constitutional amendment for a retirement age, an enforceable code of ethics, and a judicial appointments commission, would be better, but that appears to be an impossible option.

  2. I’m not sure the Court would let such legislation fly.

    The better scenario would be to expand the Court but couple the expansion with ironclad guarantees (probably needing Amendments) that 51 votes in the Senate is not enough for a lifetime appointment. It would be better if that could also be coupled with a neutral vetting and nomination committee for all judges.

  3. The idea comes from two law profs, first published in Vox.com. For me, I say turnabout is fair play. If the Dems re-take the White House and Senate, just impeach Kavanaugh and Gorsuch, and say, sorry fellas, fruit from the poisonous tree. Yes, pun intended from the title of your blog.

    • My thought is that the courts will rule that since the Constitution mandates a Supreme Court and inferior courts, there must be a separation between them. They’d probably also thrown in that ending a period of service without impeachment or voluntary resignation is a violation of the good behavior clause.

      They could probably get away with having district court judges ride circuit as appellate judges, but not between the two mandated levels.

      (Not a lawyer, but I did sleep at a Holiday Inn Express last night)

      • I don’t doubt that the Supreme Court would somehow find a way to declare a “rotation” law unconstitutional! And Mark comes up with some plausible bases on which such a ruling would be made. But, objectively, I think a case could be made that it is consistent. Of course, in the real world, that does not matter. The only thing that matters is what five members of the existing court say. Just ask President Al Gore.

        There are many, many other proposals for reforming the Court that I would prefer. Presumably all of them require constitutional amendments. And therefore will not happen.

  4. The USA pioneered the idea of a constitutional court, but my understanding is that other countries who introduced their courts later opted for more justices, more clearly defined powers, and retirement ages or long fixed terms are also pretty common. Even in the USA, the Supreme Court was expanded by Congress from six to nine justices at some point.

    My personal preference is 15 justices serving fixed terms of 15 years each.

  5. I don’t think rotation of Supreme Court Justice is a good idea, how many countries have High/Supreme/Constitutional Courts with lifetime terms? I know some have mandatory retirements at a certain age, is this a good idea? What is the mechanism for impeachment? It doesn’t seem as if it is in the body of the constitution. Advise and Consent of the Senate seems vague, odd that there is no threshold of simple or absolute majority or just plurality.

    If a Supreme Court member was improperly appointed by lack of advice and consent, how would that be disputed? Would members of the Supreme Court expel such an individual if there was a lack of advice and consent? That sounds like a Constitutional Crisis.

    https://www.usconstitution.net/xconst_A1Sec5.html

    There is no way for a minority simply to boycott the Senate and deny a quorum as it is 51 seats.

    • In theory 50 senators opposed to a nomination that would otherwise go to a VP’s tiebreaker could boycott the Senate.

    • The short answer is that no other common law democracy has life tenure for its supreme court. Only 4 of the US states have life tenure for their own supreme courts.

      • While that is largely true, many of them replace life tenure with a mandatory retirement age. That brings its own sense of problems.

      • I also meant to add “Or elections.” They each have their own set of problems. Why is a judge qualified at 74 but not 76? Do we really want judges running for election? Is there a U.S. political party that will deliberately select young, and possibly inexperienced judges, to keep them from being retired off.

      • The statements are not ‘large true’. They are true play and simple. The alternative would be for you to point t anther common law democracy where the top curt does not have a retirement age or maximum term, to more than 4 US state supreme courts that have do not have life tenure or a maximum term.

        Life tenure is not related to the question of electing judges.

        The fuzziness argument applies to any age qualification. Why is a citizen qualified to vote at at 18 but not 17? The short answer is that there has to be a bright line rule or there is no rule at all. It does not matter in the slightest if you drive on the left or right side of the road so logos everyone else in your jurisdiction is driving on the same side. I favour a lower voting age, but ultimately any age qualification is both arbitrary and necessary, just as everyone driving on the same side of the road driving is both arbitrary and necessary.

        Retirement ages are not only about competence, they are also about accountability, renewal, and the circulation of ideas.

      • Clearly we do not agree on the degree of difference between “indefinite tenure until death” and “indefinite tenure until a certain age.”

        I also stand by my statement that, to the best of my knowledge, the reason a good number of states have fixed terms for judges is that they moved from fully appointment to elected and/or voter confirmed judges. I do not support the idea of electing judges and largely see election as a step back from indefinite tenure.

      • Alan, a voting age, however arbitrary, is necessary. A retirement age is not. There are many perfectly competent judges serving above the age of 70, and we should not discriminate against them or anyone else on the basis of age. Fixed long terms solve the problem much more neatly.

        By the way, there is a actually clear advantage to driving on the left, as most people are right-eye dominant, so a right turn is relatively safer in left-side driving countries than left turns are in right-side driving countries, all else equal. In the aggregate, this can save lives.

      • jd

        I agree. I would be much happier with a fixed term than with a retirement age, particularly for a constitutional court.

        A majority of US states have provision for removal for cause, also known as removal by court judgment. Roy Moore managed to get himself removed for cause as chief justice of Alabama not once, but twice. A typical example is Alaska’s constitution, Article IV, Section 10, which provides:

        Commission on Judicial Conduct
        The Commission on Judicial Conduct shall consist of nine members, as follows: three persons who are justices or judges of state courts, elected by the justices and judges of state courts; three members who have practiced law in this state for ten years, appointed by the governor from nominations made by the governing body of the organized bar and subject to confirmation by a majority of the members of the legislature in joint session; and three persons who are not judges, retired judges, or members of the state bar, appointed by the governor and subject to confirmation by a majority of the members of the legislature in joint session. In addition to being subject to impeachment under section 12 of this article, a justice or judge may be disqualified from acting as such and may be suspended, removed from office, retired, or censured by the supreme court upon the recommendation of the commission. The powers and duties of the commission and the bases for judicial disqualification shall be established by law.

      • jd

        BTW, you asked me ages ago for some introductory books on comparative law. You could do worse than have a look at some of the Very Short Introductions on legal topics. I have an embarrassing addiction to the Very Short Introductions series. Our host should write several immediately.

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