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Monday, October 05, 2020

Changing Supreme Court Terms

Some brief questions. Suppose one of the statutory proposals to impose term limits on the Supreme Court Justices is enacted. Someone then wants to challenge the new statute on constitutional grounds. How would that challenge work exactly?

First, who would have standing? The answer may be nobody for a long time. If you say that the term limits do not apply to the current Justices, then no litigant would be adversely affected until the next appointment. Even then, you could still say that nobody is adversely affected until that Justice's term expires and he or she is forced off the Court for that reason. Would the first Justice appointed to the term-limited version have standing? I suppose, but I can envision many difficulties there. (The history of Supreme Court Justices as litigants would be a fascinating topic, BTW.)

Second, if someone does have standing, then who would decide the suit? Wouldn't the Supreme Court itself be forced to recuse in such a case? Would Congress have to create some special circuit court for the matter? And how would that work?


Posted by Gerard Magliocca on October 5, 2020 at 12:56 PM | Permalink


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Posted by: slot | Jun 20, 2021 4:15:46 AM

"Wouldn't the Supreme Court itself be forced to recuse in such a case?"

U.S. v. Will, involving the constitutionality of a provision that was ultimately partially deemed unconstitutional under the Compensation Clause might be useful here. It decided that recusal was not appropriate even though it could be deemed that they were self-interested.

"although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may, but must, do so if the case cannot be heard otherwise."

Posted by: Joe | Oct 5, 2020 6:13:13 PM

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