Democrats could take back the Supreme Court by 2024 with a mandatory retirement law for federal judges.
We clearly need to fix the Supreme Court. I like the idea of adding seats. But some Democrats in Congress are hesitant about the idea, making it unlikely to pass this year. That hesitancy may be based in part on the argument that a sudden expansion of the court to 13 seats would invite partisan retribution. Although court expansion would give President Biden four immediate appointments, it would offer Republicans political cover to expand the court to 17 seats next time they have unified government. (And I don’t doubt for a second that the GOP would do that in a heartbeat.) Court expansion also polls badly.
But what if Congress left SCOTUS at 9 seats, and simply imposed a mandatory retirement age of 75 on all federal judges, to take effect on October 1 of the year it passes? A judicial retirement age and/or term limits are much more popular than court expansion, and likely would seem like less of a partisan power play.
“But federal judges serve for life!” Well, sort of. Under the Constitution, judges “shall hold their Offices during good Behaviour,” but stepping down from an active federal judgeship doesn’t necessarily mean giving up the “office” of federal judge. For example, a “retired” Supreme Court Justice may continue to serve on the federal judiciary in any capacity as assigned by the Chief Justice, including as a circuit court judge — they still hold the “office” of a federal judge, but they just don’t sit on SCOTUS any more. Circuit Court and District Court judges currently have the option to assume senior status once they are over 65 and their combined age and length of service exceeds 80 years. Senior judges continue working in a reduced capacity — they are still judges, but they handle smaller caseloads.
Therefore, Congress should simply make senior status (or retirement for SCOTUS judges) mandatory at age 75. That would comply with the Constitutional requirement that judges “hold their Offices during good Behaviour”, because they would keep the “Office” of a federal judge and could continue to draw federal paychecks and decide cases under their new status. However, their current positions would open for the President to fill.
For sake of argument, I’ll assume Democrats in Congress could somehow solve their Manchin/Sinema problem (long shot, I know) and pass a Judicial Retirement Act this spring to take effect no later than October 1, 2022. The Act would force all federal judges to take retirement/senior status immediately on reaching the age of 75.
On the district courts and circuit courts, such a law would force a wave of retirements from active service in October, giving President Biden a number of lower-court appointments before the end of the year. (By my count, there will be somewhere around thirty active circuit court judges over 75 by January of 2023. Most of them are Democratic appointments from the Clinton administration, but about a dozen were appointed by Reagan or one of the Bushes.)
On the Supreme Court, mandatory retirement at 75 would require Stephen Breyer, at age 84, to step down from active service immediately when the law takes effect. Clarence Thomas would be forced into retired status when he turns 75 next year, on June 23, 2023. This also means that Sam Alito would have to leave by April 1, 2025, so the next President gets to replace him. It’s not a dramatic transformation of the Court, but if Democrats can hold the White House and Senate in 2024, we’d be back to a 5-4 Democratic court by summer of 2025.
But perhaps those SCOTUS retirement dates could be pushed forward. The Supreme Court serves in annual terms that begin on the first Monday in October of each year. It’s completely reasonable for Congress to determine that mid-term retirement on SCOTUS could disrupt the court’s business — after all, a judge who hears a case might not be around to decide it if they have to be replaced partway through the term. So Congress could mandate the retirement of any Justice who will turn 75 before the end of the upcoming SCOTUS term. That would force Thomas to step down from active service before October 3, 2022, giving Biden two appointments this year. It would leave a 5-4 Republican court for the next two years, but would also lock in Alito’s mandatory retirement by October 2024. That would allow Biden to fill Alito’s seat before the 2024 election (if Democrats still control the Senate).
What if a judge decides to sue to avoid forced semi-retirement? Congress can and should strip federal courts of jurisdiction to hear challenges to the judicial retirement law. It’s absolutely proper for Congress to do so in this case: every federal judge will be subject to the mandatory semi-retirement provision, and thus would have a disqualifying conflict of interest in ruling on the law anyway.
A mandatory semi-retirement law, standing alone, would still let a President influence the Supreme Court for decades by appointing really young Justices. The Judicial Retirement Act should therefore also set minimum ages to be appointed to federal courts. I suggest that a judge must be at least 35 years old to serve on a district court, age 45 to serve on a circuit court, and 55 to be a Supreme Court Justice. Even the youngest possible SCOTUS appointee would thus have a de facto term limit of no more than 20 years, and forward-looking Presidents could appoint Justices to prevent anticipated future vacancies from clustering in any particular Presidential term.
I expect there aren’t enough votes in Congress to expand the court right now. Skittish centrists probably think court expansion is too radical. But maybe there could be enough votes for the effective term limits created by minimum judicial ages plus mandated semi-retirement, along with the one-time opportunity to open a bunch of seats for Biden to make appointments.
Even if Republicans take the Senate in 2022 and block all Biden judicial appointments in 2023 and 2024, it wouldn’t prevent Biden from replacing Breyer and Thomas this year with the current 50-50 Senate. If Senate Republicans were to hold Alito’s to-be-vacated seat open until after the 2024 election, that would make control of SCOTUS a major campaign issue. I can only hope that prospect would fire up the Democratic base next time around.
