Democratic presidential candidate Sen. Bernie Sanders said Monday he was open to backing a major proposed reform to the makeup of the Supreme Court.
The Vermont independent, following the lead of some progressive legal scholars, floated a plan that would effectively end lifetime, uninterrupted appointments for Supreme Court justices.
“What may make sense is, if not term limits, then rotating judges to the appeals court as well,” Sanders said at the We the People Summit in Washington. “Letting them get out of the Supreme Court and bringing in new blood.”
Sanders stopped short of backing calls to add justices to the court, a strategy gaining steam with a new generation of left-wing activists, who are putting pressure on the Democratic candidates to address their concerns over the current conservative influence on the court with more ambitious plans.
“My worry is that the next time the Republicans are in power they will do the same thing,” Sanders said of the court-packing option. “So I think that is not the ultimate solution.”
Progressive legal scholars and activist groups have paid increasing mind to the courts in the aftermath of 2016, when Senate Republicans blocked former President Barack Obama’s Supreme Court pick, Merrick Garland, denying him even a public hearing ahead of the election. Since then, President Donald Trump has appointed two justices, both confirmed nearly along party lines after the GOP did away with the filibuster for Supreme Court nominees.
“It’s not just about expansion, it’s about depoliticizing the Supreme Court,” Sen. Elizabeth Warren told Politico in March. She also discussed rotating in lower court judges. Sen. Cory Booker, too, has suggested “term limits for Supreme Court justices might be one thing” to consider.
Brian Fallon, the former Clinton adviser who now runs the advocacy group Demand Justice, said Sanders’ remarks – which followed other similar calls from his fellow 2020 Democratic primary contenders – showed Democrats are beginning to prioritize the judiciary in ways they had previously avoided.
“There is a growing consensus in the Democratic party that the Supreme Court must be reformed,” Fallon told CNN after Sanders spoke. “The only debate is how to best reform it. But no one is any longer defending the status quo of just letting the Roberts Court block progressive proposals for the next 30 years.”
The path Sanders discussed is most like one proposed by the scholars Daniel Epps and Ganesh Sitaraman, who have set forth, among other options, what they described last year as a “panel solution.”
Spelling out their logic in an op-ed for Vox, the pair suggested it would be possible to “eliminate the high stakes of Supreme Court appointments” by rotating justices, “like a panel on a court of appeals.”
“Every judge on the federal court of appeals would also be appointed as an associate justice of the Supreme Court. The Supreme Court ‘panel’ would be composed of nine justices, selected at random from the full pool of associate justices,” Epps and Sitaraman wrote. “Once selected, the justices would hear cases for only two weeks, before another set of judges would replace them.”