I have a slightly different idea for a simple Supreme Court that could be done by statute without amending the Constitution. Congress could create the position of Senior Justice, analogous to Senior Judges in the lower courts, who continue to sit by designation with a much reduced caseload and who get to decide which types of cases they will take. Retired Supreme Court Judges generally become Senior Judges. Justice Souter continues (as far as I know) to hear cases on the First Circuit. Here’s how it would work. Senior Justices would no longer vote on writs of certiorari (i.e., on which cases the Court will take) but, once the Court has granted certiorari, they could choose to take part in that case, e.g., by so informing the Chief Justice within 30 days. The result would be to draw Justices Breyer, Kennedy, and Souter out of retirement for any cases they deeply care about. If Justice Sotomayor were to retire and be replaced with another liberal, that could undermine the current 6-3 conservative majority (if you ever had tie, e.g., at 6-6, that would merely affirm the lower court ruling in that case without creating binding Supreme Court precedent).

I have no idea how feasible this would be in practice but I throw it out as something that might be possible, if only because Congress can do it by statute (or they could simply enlarge the Court but that might be a bridge too far for some, even on the Democratic side).

How term limits for Supreme Court justices?now backed by Biden?could work

www.abajournal.com

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