In last night’s Democratic debate, a leading contender for the nomination offered a Constitutionally suspect plan for ensuring abortion remains protected.
Sen. Bernie Sanders (I-Vt.) on Thursday night floated the idea of rotating Supreme Court justices to other courts to bridge the current ideological divide.
“I do not believe in packing the court,” Sanders said during the second of the first two 2020 Democratic presidential debates. “We’ve got a terrible 5-4 majority conservative court right now. But I do believe constitutionally we have the power to rotate judges to other courts and that brings in new blood into the Supreme Court and a majority I hope that will understand that a woman has a right to control her own body and that corporations cannot run the United States of America.”
Sanders made the comments while addressing a question posed about what he would do as president if a conservative-led Supreme Court struck down Roe V. Wade, the landmark ruling that established the right to an abortion.
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This isn’t the first time Sanders has offered the idea rotating Supreme Court justices.
“What may make sense is, if not term limits, then rotating judges to the appeals court as well,” Sanders said at the We the People summit in Washington in April, according to CNN. “Letting them get out of the Supreme Court and bringing in new blood.”
Preet Bharara, who once served as U.S. attorney for the Southern District of New York, questioned the idea, asking on Twitter whether he was “missing something.”
A Sanders spokesperson told The Hill that Sanders’s plan to reform the courts “would be to rotate Supreme Court justices down to circuit courts after a set term limit, serving out the remainder of their lifetime appointment in lower courts.”
“Bernie believes if we were to pack the court, Republicans would simply do so the next time they gained power,” the spokesperson said. “Bernie’s plan would only require an act of Congress.”
—The Hill, “Bernie Sanders says he would move to ‘rotate’ Supreme Court justices if elected“
Sanders is right that any plan by Democrats to pack the Supreme Court if they take control of the White House and Senate would backfire. Not only would Republicans follow suit the instant they had the chance but the legitimacy of the courts as independent arbiters—granted, already on shaky ground—would be destroyed forever.
But his alternative is just . . . nutty. There’s no way around it.
Yes, the Constitution allows Supreme Court Justices to serve as Circuit judges. Indeed, it was common practice in the early days of the Republic. But neither the President nor the Congress has the authority to remove a Supreme Court justice from his seat—other than via impeachment—and send him down to the lower courts.
Were Sanders to somehow to persuade the Congress to go along with such a scheme, the Supreme Court would surely strike it down 9-0. Because every single Justice has a stake in ensuring that they can’t be relegated.
