Rotating The Supreme And Inferior Courts’ Justices? Unconstitutional

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Want to Supreme and inferior Courts – Is It Even Remotely Constitutional? Another Bold Initiative Sanders Might Want To At Least Consider

WASHINGTON, D.C.  (June 28, 2019) –  Senator Bernie Sander’s claim that “constitutionally we have the power to rotate judges to other courts and that brings in new blood into the Supreme Court  . . .” has been met with almost universal derision and disbelief, but some might want to at least consider it, and other related bold new initiatives, suggests public interest law professor John Banzhaf.

The Constitution itself provides little guidance and few restrictions on what Congress might do regarding the Supreme Court and other federal courts.  To begin, it does not even talk about supreme court justices as persons holding different offices from other judges, referring instead generally to “The Judges, both of the supreme and inferior Courts.”

This apparently led an article in the respected Pennsylvania Law Review stating that the custom of having the president nominate a chief justice “is not constitutionally required, or at least not evidently so.”  So, it suggests, “Congress could develop a different mechanism for promoting justices  . . . for example, that the position [of chief justice] would rotate among sitting justices.”

So it appears there is a legal argument for some rotation on the Supreme Court.

The only major limitation the Constitution imposes is that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”

So if the “office” which each is entitled to hold during good behavior is arguably defined as the office of “judge” – and not necessarily a judge in a specific federal court – it could at least be argued that a federal statute could mandate some type of rotation of judges between courts, including the Supreme Court, provided only that individual federal judges were able to “hold their offices (i.e., serving on some federal court) during good behavior.”

Since most experts agree that the Congress has wide discretion in terms of which courts it may wish to establish, and the power to limit the subject matter which each such court can consider, a president Sanders might want to consider establishing a new federal court which would be given exclusive jurisdiction over all federal cases involving abortion, contraception, and reproductive rights.

He could then appoint and, with the consent of the Senate, have confirmed three or five judges fully committed to preserve the rights established by Row v. Wade.

After all, if Congress can establish a U.S. Foreign Intelligence Surveillance Court, a “Special Division” court authorized by the Ethics in Government Act to appoint independent counsel, special three-judge district courts to deal with certain apportionment cases, etc., perhaps it could also establish a U.S. Court of Reproductive Rights, notes Banzhaf.

Congress might then by statute provide that any ruling by such a court, presumably those supporting abortion rights, is not subject to review by the Supreme Court.

After all, notes Banzhaf, the Constitution does provide that the Supreme Court has original jurisdiction (can deal with cases itself) in only a very limiting number of situations.

“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.” [emphasis added]


Professor of Public Interest Law

George Washington University Law School,

FAMRI Dr. William Cahan Distinguished Professor,

Fellow, World Technology Network,

Founder, Action on Smoking and Health (ASH),

2000 H Street, NW, Wash, DC 20052, USA

(202) 994-7229 // (703) 527-8418

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