In last night's US Presidential Debate, candidate and US Senator Bernie Sanders asserted the option of being able to "rotate" Supreme Court judges / justices to other courts. As quoted in The Hill:

"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."

For background, Article III, Section 1 of the US constitution is in full:


Article II, Section 2, states in part:

[The President,] by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for...

Is Sanders' claim (in bold above) correct? Does the US President, or anyone else for that matter (other than a Supreme Court justice choosing to retire from their position on the Supreme Court) have the power to "rotate" those judges to other courts?

Consistent with Sanders' claim, this question is asked under the current US constitution assuming no amendments; just about anything is possible via amendment.

Also, while a bunch of folks on Law.SE might be able to speculate or find persuasive arguments posted in answers below, who would be able to authoritatively decide the constitutionality of such a question, with all Supreme Court justices having clear conflict of interest on the matter?

A couple law professors posts proposals here (and in more detail here, reviewed here), one for a rotating panel of appeals court judges to serve on the Supreme Court, and another for a 15-justice Court with 5 appointed by each party and 5 picked unanimously by those 10, without the ability to hear cases if those seats are empty. There is also a proposal circulating for 18-year term limits followed by remainder-of-lifetime service on a circuit court. If any of those, or other strategies, appear constitutional at present, an explanation of why would be a great answer, as would be an explanation of why any proposal involving rotation consistent with Sanders's quote would not be possible under the current constitution unamended.

Note: The question framing intentionally excludes consideration of any person or military force who might have the physical firepower to remove Supreme Court justices in a way that would leave them unable to serve as a judge in another federal court. That's not "rotating" off.

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    I don't agree that he is correct but don't have time to write a full answer at this time. – ohwilleke Jun 28 '19 at 16:00
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    @ohwilleke I hope you will find time over the weekend or sometime soon. – phoog Jun 28 '19 at 22:12
  • It sounds like Sanders is interpreting "hold their offices" to mean that all the federal courts, including SCOTUS, are considered equivalent offices, and they can be moved from one court to another without violating it. – Barmar Jun 29 '19 at 0:29
  • Do you want more of a "conflict of interest" than Marbury v. Madison? The court literally decided its own authority of judicial review in that case, then used it to immediately strike down a law. So if Congress passed a law to rotate them... there's really nothing stopping that law from landing in the trash if their own opinion was that it was unconstitutional, and there's already good precedent in the Senate for not convicting judges merely for their controversial opinions, so impeaching them would be tough. – user541686 Jul 30 '19 at 9:39

I will only address this part of the question:


The Supreme Court could still hear such a case, as the justices make their own decisions about when to recuse themselves. In particular, they might decide to hear the case based on the "Rule of Necessity", which says roughly that a biased judge is better than none at all: a judge can hear a case, even in the presence of a conflict of interest, if there is no other way for it to be heard. See United States v. Will, 449 U.S. 200 (1980), in which the Supreme Court ruled 8-0 that federal courts could try a case related to the salaries of federal judges.

Another possibility is that the case could be brought in a lower federal court, say District Court. There is a question here: the Supreme Court has original jurisdiction in "all Cases affecting Ambassadors, other public Ministers and Consuls" (US Constitution, Article III, Section 2), and I do not know whether Supreme Court justices are "public Ministers". However, if a lower court did have jurisdiction, it could rule on the constitutionality of the question, since a District Court judge would not have a significant conflict of interest. The relevant Circuit Court of Appeals could presumably hear an appeal. If the Circuit Court's ruling was appealed to the Supreme Court, and the Supreme Court felt that they all had conflicts of interest (and decided not to invoke the Rule of Necessity), then they could simply not vote to grant certiorari, in which case the Circuit Court's ruling would stand.

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    I'm pretty sure that "public ministers" refers to certain diplomats, so it would not encompass members of the judiciary. – phoog Jun 28 '19 at 15:39
  • Nice post! +1 and thanks for answering. – WBT Jun 28 '19 at 15:47
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    @phoog Yes! As I understand it, Ambassadors used to be exceptional, and most/many countries (the US included until the 1890s) exchanged Ministers. – owjburnham Jun 28 '19 at 16:13
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    @owjburnham indeed, and even if there is an ambassador, if you look at the US state department's diplomatic list (also known as the "blue list"), you'll see that many of the less senior diplomats listed have the title "minister." – phoog Jun 28 '19 at 16:22
  • "Original jurisdiction" is not the same thing as "exclusive jurisdiction". Those cases can start immediately at the SCOTUS, but in practice very few of them actually do and lower courts share original jurisdiction. The basic rule with SCOTUS exercising original jurisdiction is "only when necessary". They've always preferred that matters move through lower courts first whenever possible, and only in exceptional cases do they accept original jurisdiction or allow a case to leapfrog the usual progression through lower courts (like with the census case, due to time sensitivity). – zibadawa timmy Jun 29 '19 at 7:26

Sanders is technically correct but practically wrong.

The only way to remove a sitting justice from the US Supreme Court, without that justice's consent, is by impeachment. So what Sanders has proposed could be done; Congress could impeach the longest-serving member of the court, the president could then appoint another to join the court, and if the removed justice were willing the president could appoint him to some other federal court.

However, unless the judge removed in this way had done something genuinely wrong, he/she would probably mount a legal challenge, and the other eight would rule that the procedure was playing the system in order to get around the US Constitution's very clear intention that appointment to the high court is a lifetime affair.

(There's also the point that Sanders' motivation—by his own admission—is to clear away judges who fail to support his ideology. That is not going to win him any fans on the court.)

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