On June 27, 2019 during the second Democratic Primary Debate, Vermont Senator Bernie Sanders proposed rotating United States Supreme Court Justices with judges from lower federal courts.  This solution was offered in response to the “court packing” occurring under President Trump’s administration, leading to the growing conservatism of the Court.  Additionally, the nomination and appointment of progressively younger Justices in recent years promises to only lengthen their tenure.

While Senator Sanders did not specify details of his proposal during the debate or subsequently on his official campaign website, he asserted “that constitutionally we have the power to rotate Judges to other courts….”. Sanders’ primary objective seems to be an effort to balance the Supreme Court’s current conservative majority to ensure the protection of women’s reproductive rights.

It is an interesting proposal, but is it viable? An evaluation of the feasibility of his claim based on current constitutional interpretation lends some plausibility to Congress’s ability to restructure the U.S. Supreme Court, but perhaps not in the way Senator Sanders intended.

Under Article III of the U.S. Constitution, life appointments of Justices to the U.S. Supreme Court is not specifically granted, nor is there anything that prevents Justices from being rotated to lower courts. Instead, the language of Article III §1 merely clarifies that “[t]he judges both of the supreme and inferior courts, shall hold office during good behavior, …”

Pursuant to current interpretations of this language, Justices can be removed in one of three ways: (1) impeachment by Congress, (2) voluntary retirement, or (3) death. Lifetime appointments of U.S. Supreme Court Justices are also supported by the Constitutional Framers’ failure to designate a term limit or maximum age. However, a textualist reading of the US Constitution could allow for alternate tenure lengths subject to adequate restructuring of the Supreme Court by Congress.

Congress’ role in setting the structure of the Supreme Court is reflected in changes over time of the Court from its original foundations. Under the Judiciary Act of 1789, Supreme Court Justices were commonly authorized to take on roles in lower courts, effectively called “riding circuit.” Thus, Supreme Court Justices were assigned to hear cases on the lower circuit courts alongside a designated district court judge. Outcries over the travel requirement eventually led to the displacement of Supreme Court Justices in these roles, ceding to circuit court judges via the Judiciary Act of 1869, though the practice was not fully abolished until 1911.

Congress’ passage of the Judiciary Acts is indicative of its power to control the structure of federal courts. This includes prospective, future changes to the Supreme Court. Thus, the movement of Supreme Court Justices to lower courts would be possible provided legislative authorization from Congress.

Passage of such sweeping changes to longstanding Supreme Court practices faces significant political hurdles depending on the composition of Congress following the upcoming 2020 election. However, a greater barrier lies in the second component of Senator Sanders’s proposal: exchanging lower court judges for Supreme Court Justices. Two significant constitutional challenges arise that would prevent the swift replacement.

First, a Justice could not likely be “rotated out” of the Supreme Court without a formal impeachment proceeding or voluntary withdrawal. Either would be necessary to make room for a new Justice, unless the number of Justices, currently capped at nine per the Judiciary Act of 1869, is also up for consideration. Impeachment of a Supreme Court Justice requires a majority vote of the House and two-thirds majority of the Senate via Art. II §4 of the Constitution. This is unlikely to occur absent egregious behavior.

Second, a new Justice “rotated in” would need to be properly nominated and appointed. Under the Appointment and Removal Power designated in Article II, §2 of the Constitution, the executive branch has the sole responsibility for nominating Judges to the Supreme Court. While Congress can certainly remove a Justice via the impeachment process without Presidential approval, it has no designated power to unilaterally place Judges on the Supreme Court without first receiving this nomination from the President. Any attempt by Congress to wield this sort of authority would constitute a separation of powers violation. Congress must instead rely on traditional nomination and hearing processes for an appointment of a Supreme Court Justice to be considered constitutionally valid.

Therefore, Congress would remain bound to appoint Justices via the standard, time-consuming nomination process. Even if Justices were allowed to be moved to lower courts under a new Judiciary Act, the lower court Judges must still be nominated and appointed if they hope to serve on the Supreme Court.

Given the aforementioned constitutional barriers, Senator Sanders’ proposal to rotate Supreme Court Justices with lower court Judges lacks practicality for changing the current make-up of the Court. While it is possible to assign Supreme Court Justices to lower courts temporarily, ‘rotating’ them with lower court judges is not without initiating the impeachment process and the subsequent nomination and appointment of a new Justice.

Maria L. Hodge is a J.D. Candidate (2021) at the Sandra Day O’Connor College of Law, Arizona State University College of Law, with interests in federal and state legislative policy and technology law.

Suggested citation: Maria L. Hodge, The Feasibility of ‘Rotating’ Supreme Court Justices, JURIST – Student Commentary, July 1, 2019, https://www.jurist.org/commentary/Maria-Hodge-rotating-justices

This article was prepared for publication by Tim Zubizarreta, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org