Breyer, a tentative advocate of Supreme Court term limits, looks on at Bernie Sanders

After last night’s debate with almost all of the Democratic frontrunners, the mainstream media and most of the Democratic base thought the biggest story of the night was Joe Biden’s thrashing at the hands of Kamala Harris on his race record. Conservative media, however, picked up on a quiet, off-hand statement at the end of Bernie Sander’s answer regarding Roe v. Wade. “I do believe constitutionally we have the power to rotate judges to other courts and that brings in new blood into the Supreme Court.”

This was understandably shocking. The prevailing constitutional view has always been that Supreme Court judges hold office for life unless they are impeached or choose to retire, understood to be the meaning of the text in Article III, Section I of the Constitution known as the good behavior clause, saying “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” No Supreme Court justice has ever been forced to leave the office, no matter how grave their misconduct or how hateful their heart.

An Apparent Outlier?

Sanders’s brief proposal, at first blush, does not directly track any of the options for reforming the Court discussed in legal academia. Numerous articles, following a 2004 student note by James DiTullio and John Schochet, have proposed 12 or 18 or 20 year term limits for justices, reducing the incentive to appoint younger justices and reducing the political significance of each individual appointment. But, the majority view is that such term limits would require an amendment to the Constitution.

Other proposals have emerged very recently from Daniel Epps and Ganesh Sitaraman, who identify two alternatives. In the first, the Supreme Court becomes a rotating two-week random selection of all of the federal appellate judges. This seems as if it would create problems far worse than it solves, with every two weeks bringing potential drastic changes to existing law if a panel of outliers is assembled, and has thus far received no candidate endorsements. Epps and Sitaraman’s other proposal, the Balance Court, would involve five partisan appointments from each party choosing an additional five justices unanimously. Its constitutionality without an amendment, like that of fixed term limits, is highly suspect. It is currently the favored proposal of Pete Buttigieg.

Based on his remarks in last night’s debate, Sanders seems to believe his “rotating out” plan does not require a constitutional amendment. At at an earlier event on women’s rights he also mentioned rotation, associated with a 12-year timeframe. 12-year rotation seems distinct from fixed term limits, implying the possibility of returning to the court. It is also a far cry from a biweekly process of lottery appointment, and the Balance Court involves no rotation. What, then, would the Sanders plan actually consist of?

A Comparison With Term Limits

Sanders appears to have suggested a backdoor way of implementing limited pseudo-term limits for Supreme Court justices without constitutional amendment. Prior to 1912, Supreme Court justices were required to “ride circuit” periodically, sitting in regional appellate courts, hearing direct appeals from district courts instead of hearing Supreme Court cases. Because the constitutionality of requiring justices to ride circuit is and was mostly undisputed, Sanders’s intention is possibly to use this precedent to force justices who have sat on the Supreme Court for 12 years to spend some or all of their time sitting on the modern circuit courts instead. Such a reform may be possible only with an act of Congress, like the 1789 Judiciary Act that initially required riding circuit, without a specific amendment. Presumably, as Sanders mentioned adding “new blood” to the court, new justices would be appointed normally and “rotated in” when a justice leaves to ride circuit after their initial twelve years.

The advantages of such a plan would largely overlap with the advantages of term limits: The counter-majoritarian effects of Supreme Court appointments are diminished, with the court more closely tracking the recent governing parties. The random unfairness of whose term it is when many justices choose to retire being would be significantly lower. These effects would be less pronounced than that of term limits because some of those justices would remain around, rotating back in, but a more moderate limiting effect may be more desirable for Democrats. A pure fixed term limit system risks making landmark precedents too easy to overturn in the face of relatively brief changes in popular opinion. Relative to fixed term limits, the risk of overturning landmark rights cases Brown v. Board of Education or Roe v. Wade is possibly diminished, as the replacement of a full slate of justices cannot occur as rapidly and consistently, but the Court would still receive creative new blood periodically and the risk of a 20-year majority for one party gradually shifting doctrine across the board would be greatly diminished.

Such a proposal could even begin to check senatorial obstructionism with respect to judicial nominees; The choice of who fills the vacant seat temporarily out of the rotated-out justices could be the sole discretion of the president, as any rotated-out choice already received the consent of the Senate. If any seat sitting vacant on the Court were indefinitely filled by a rotated-out justice chosen by the sitting president, the opposing party in the Senate has an incentive to agree to fill the seat with a compromise candidate before the justice now rotated-in does too much damage. Simultaneously, the President is still incentivized to fill the seat before the next President takes office. And the court can maintain a full quorum at all times.

Additionally, Sanders’s circuit-riding proposal might solve the biggest potential problem with term limits I have heard from actual Supreme Court practitioners and even Justice Breyer himself: If forced out, retired Supreme Court justices would likely go job hunting and then become the most powerful lobbyists and attorneys in the United States. The mere clerks of the Supreme Court are routinely given bonuses over a third of a million dollars to go to large law firms and help massive corporations figure out how to influence the Court, and those clerks are not directly privy to the Justices’ private discussions in conference and typically serve for only a year. The immense amount of private knowledge of how to manipulate the other justices on the Court would be an overwhelming advantage for the moneyed in Supreme Court practice beyond what they already have, potentially destroying the legitimacy and accessibility of the institution. However, judges of the circuit courts only extremely rarely return to practice, so the incentive would appear to be decreased, and justices would most likely only have a guaranteed rotation back on to the court if they did not give up the office. Additionally, allowing life terms to remain in some sense makes a future potential ban on Article III judges returning to practice more feasible, as advocated by scholars like Mary L. Clark.

The Upshot

In a primary where the Democratic Party is terrified of a permanent conservative majority on the Supreme Court enshrining indefinite rule by a political minority for two decades or more, this conception of the Sanders proposal may be the only non-amendment option available to a Democratic congressional majority aiming to structurally reform the court. While much of the party casts Sanders as an idealist, he may be offering the only practical option available.