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.