Just like you can promise to Senator Collins that you won’t touch long-established precedents, like Roe v Wade.
Once they’re confirmed, they are independent constitutional officers. What they said prior to their appointment is not binding on them. They can exercise their jurisdiction as they see fit.
[Note: not trying to turn this into a Roe v Wade / Dobbs / Kavanaugh / Gorsuch thread. Just using a recent example where the judge can do something differently from what the judicial candidate said. ]
Well, this is a bit of an interesting question. Recently, the practice among retiring Supreme Court Justices has been to submit their resignation “upon the nomination and confirmation of my successor.” Presidents have then proceeded to nominate an individual to replace the Justice and the Senate to consider and vote on their confirmation.
But what if the retiring Senator changed his or her mind ten minutes before the Senate vote? Could he or she refuse to step down?
My guess is that the nominee would have to wait until the justice did decide to retire, or a different justice retired, or else Congress could put him in anyway by expanding the court.
I guess another question would be if the opening closes and later on another opens up would he have to be reconfirmed, and if the answer is no, could he be deconfirmed?
Since you’d need to amend the Constitution to implement this scenario you could set it up any way you want to. A vacancy due to death or resignation could be filled by a randomly chosen circuit court judge or from a list of retired judges.
Brings up the question - can the prez and senate “pre-approve” a replacement, if a person can be nominated and approved anytime before the actual end of thierpredeccessor’s term? I.e. “when Clarence Scalito departs in future, this person is confirmed to replace him…”
Presumably, this would work sort of like the senate - approve a replacement to serve until the end of that justice’s designated term. Then they’d need an amendment 25a or something, “if they serve less than half a term, they can be re-nominated for an 18-year term…”
Sure, but who would make that appointment? With a regular term of 18 years, the replacement for the remainder of the deceased’s term might still be around for quite a while. So whoever gets to make this appointment would have quite an advantage, which would counteract the basic objective of the proposal that all presidents would get an equal number of Supreme Court appointments to make.
(Actually, as per the SCOTUS website, the average tenure of a Supreme Court justice so far has been sixteen years, so this replacement appointment might be just as valuable as a regular Supreme Court appointment currently is.)
Presumably the process would be the same - prez nominates, senate confirms. The point being that being able to appoint one extra justice is a lot less than being able to appoint 3. Plus, it seems the name of the game, how it is played has changed, nowadays the goal is to appoint younger justices with longevity, not grey eminences with real experience. So, that longevity historical data is less meaningful.
So perhaps an option would be to create a 13-justice court, 13 year terms, and any case is heard by a bank of 7(? 3? 5?) justices chosen by lot. (unless 6 or more justices or the DoJ think the entire court should hear the case?) Or it could be like the appeals courts, 3 justices hear a case and the loser can petition for a full panel. Using 3 or 5-judge panels would surely speed up the current glacially slow pace of the court.
Suppose, then, that a particularly controversial topic comes to the Court, and opinions among justices are divided. One of your panels decides one way, but other justices take a different view and wait for the next opportunity to hear a case that raises the same issue to decide it differently. You’ll then need some sort of appeal process to the full en banc Court. Which you can do, but effectively you’ll just have established the full Court as the highest court in the land; and the rulings of the panels would, although they’re formally called “Supreme Court” rulings, not be decisions of the highest court but rather those of some subordinate instance, a bit like Court of Appeal rulings now.
I assume a panel that by chance is based in one direction or the other would have the restraint of knowing that they can be overruled by an en-banc ruling should a significant number of other justices disagree. I would assume too that the decisions would be passed around for comment before being issued - meaning a group of justices could get together to demand en-banc on very contentious issues. Perhaps that could be a road to en-banc as well as a second appeal from the parties involved.
I mean the panel/en-banc process option seems to work fine for lower courts. Perhaps it would speed up a court whose speed seems to be comparable to the three-toed sloth.
Bernie Sanders was doing an interview with Steve Colbert after the Republican Convention was over, and they discussed fixing the Supreme Court breifly. Sanders (head of Justice committee?) suggested that although they could not terminate a SCOTUS judge without impeachment, the excutive could move them to alternate assignments.
I’m going to second @flurb and refine it a bit, how would that not be a violation of the independence of the judiciary? It seems to me if the executive can reassign a supreme court justice then, even if not removable from office, they still serve to a significant degree at the whim of the Executive.
Yes, I thought the point about senior status and reassignment is that the judge decides whether to take senior status? the President doesn’t get to move them around and force them to senior status?
If the government can alter the count and other aspects of the court with a simple law, presumably they could create “emeritus” positions. Of course, whether this is acceptable under the constitution would be up to SCOTUS to decide. Bernie was on the justice committee (I gather) so had a pretty good idea what congress could get away with… and has probably htought a lot about the options. Unfortunately, he didn’t elaborate.
This was the live episode after the last speech of the Republican convention. As Sanders told Colbert, “It’s 2AM. Who’s listening anyway?”
It was suggested that under the constitution, Congress can simply take away appellate jurisdiction from SCOTUS, leaving them with their explicitly enumerated jurisdiction (deciding whether NY or NJ owns the Statue of Liberty, etc.) and assign it to a Superior court of appeals that would be staffed by a rotating selection of judges from the various appellate division.
I should mention here too an interview with Gorsuch in the NYTimes in the last few days, about his new book Over-ruled. He discusses some absurdities of law he’s encountered, especially the story of the magician who had to produce a disaster plan for his rabbit. For a SCOTUS judge he actually comes across as fairly reasonable and sensible, which I wouldn’t have known otherwise.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
So the Court as a whole.
If such an amendment passed and assuming “The Congress shall have the power to enforce this article by appropriate legislation.” I would take the current Justices and assign the end of their service by length on the court such as
Thomas 2025
CJ Roberts 2027
Alito 2029
&c.