Law Dork analyzes the Biden/Harris Supreme Court reform proposal. There, Chris Geidner ignores that the term limits part is surely unconstitutional without amendment. (An active justice/senior justice model, rather than flat term limits, as discussed by the Brennan Center, might pass muster without amendment.)
However, per Wiki's page on senior status, it appears that this is a voluntary, "opt-in" provision. A judge at the district or appellate level can only be forced into senior status if the chief judge deems they have a disability. Yeah, the Angel Hernandez "umpire" of the Supreme Court is going to do that to Clarence Thomas. Sure.
And, beyond THAT? The Brennan Center doesn't tell you the dirty secret. We ALREADY have that senior status for the Supreme Court! Here, from that same Wiki page.
In 1937, the option was extended to Supreme Court justices, although justices so electing are generally referred to as "retired" justices rather than having senior status. A senior justice is essentially an at-large senior judge, able to be assigned to any inferior federal court by the chief justice, but receiving the salary of a retired justice. However, a retired justice no longer participates in the work of the Supreme Court itself. That same year, Willis Van Devanter became the first Supreme Court justice to exercise the option. Since this option became available to Supreme Court justices, only ten have died while still in active service, the most recent being Ruth Bader Ginsburg on September 18, 2020.
This is sad. It's clear the provision is voluntary and applies only to judges who have already decided to retire.
The primary author, Alicia Bannon, clerked for Sotomayor. So, beyond sad, this is tribalist. Geidner claimed that coment to that end on his site was "nonsense." Well, he's a tribalist, too. And Law Dork, if not him personally, have been tagged in a Twitter follow-up to my original comment to Brennan and Bannon. I called Geidner a BlueAnon a month ago and once again, he's proven me true. Indeed, per a search of my blog, though the term didn't exist then, Geidner was a BlueAnon FIFTEEN years ago. Then, he was DEFENDING Dear Leader claiming that Slick Willie's indefensible Defense of Marriage Act wasn't that bad, and co-defending Barney Frank making the same claim. It's no wonder Kuff loves him.
So, once again, this is clearly all tribalist, and that's how and why Chris Geidner richly earned being called a #BlueAnon. It's more surprising that the likes of an Elie Mystal signed off on this. But, not totally surprising. He knows where his duopoly bread is buttered at The Nation. But, you're wrong too.
That said, Biden's reforms aren't the be-all and end-all. Eliminating the idea of justices hearing all cases en banc is another, per Steve Vladeck's book. Expanding the size of the court to, say, 13 so each appellate court has a justice "riding circuit" with no doubling up is another.
Interestingly, and where the graphic came from, a site called "SCOTUS Term Limits" was launched back in 2020. Way back then, it peddled the same bullshit that we're now getting today, the claim that "during good behaviour" allows term limits without an amendment. At least it wasn't tribalist on it.
Steven Calabrisi at the Volokh Conspiracy gets the issue right, and cites British common law back to 1761. Sadly, he goes wingnut-libertarian tribalist in claiming this attacks an independent federal judiciary.
Wrong. Rather, contra both originalists and librul originalist Constitution interpreters, just as the "Founding Fathers" (Rush Limbaugh voice) did not envision California with 60x the population of Wyoming (vs Virginia with 12x that of New Hampshire) on electoral votes, nor machine guns as "weapons," nor computers and social media on free speech, they didn't envision a significant chunk of Americans, including judges and justices, living into the second half of their octogenarian decade.
Side note: whenever a libertarian, without explicitly identifying with a capital L, calls out Democrats on something like this, it's a tell they're actually a Republican.
Term limits is the right thing.
But, there's only one way to get there.
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One last side note: Though both Congresscritters and Presidents of both parties pretend to know the Constitution, this couldn't of course be applied to current justices as its an ex post facto law. (The same would be true of an amendment, IMO, at least unless that language was written into the amendment.)
I say this because our alleged constitutional law scholar president signed into law, and willingly, a bill of attainder against ACORN.
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