An associate dean of Seton Hall Law School believes that Congress and/or the president should consider offering long-serving Supreme Court justices a “buyout” to retire.
Writing in The Hill, Brian Sheppard said the high court is in need of “some organizational change” and offering up cash to the justices actually “stand[s] a chance of getting through the Senate.”
This alleged needed “change” just happens to coincide with the fact that the SCOTUS now has a 6-3 conservative majority which recently overturned the 49-year-old Roe v. Wade decision.
Sheppard acknowledged the judicial branch is the “least democratic by design,” but justices’ lifetime tenure means a greater chance their “values and ideologies […] will radically depart from the will of the majority.”
The professor and advisor on matters of “ethics, political unrest, and injustice” (according to his faculty page) compared potential SCOTUS buyouts to what private companies do all the time, especially during economic downturns: “Congress has empowered federal agencies to offer buyouts which the Office of Personnel Management praises for bringing ‘needed organizational change with minimal disruption to the work force.’”
[T]he prospect of comfortable retirement might look more enticing now that justices are unpopular and require around-the-clock security. …
Congress should offer substantial buyouts to any Supreme Court justices who retire when they reach 10 years of service on the High Court. The five justices who have already exceeded that number should be eligible for the payment if they retire within one year. To overcome the considerable allure of ideological power, the sum should be in the millions. …
The buyout proposal here […] has the virtue of being a soft measure. Since it changes the court’s composition only if justices, themselves, choose to opt in, it does little to threaten judicial independence. Yes, five justices (Clarence Thomas, John Roberts, Samuel Alito, Sonia Sotomayor and Elena Kagan) would be incentivized to seek immediate retirement, which could create a windfall of vacancies for Biden. But there are nearly as many eligible Democratic as Republican appointees. And ideological motivations make it at least as likely that Justice Sotomayor would seek a buyout as Justice Thomas, since her replacement would be chosen by a Democratic president. Even if buyouts skew the partisan divide on the court toward equilibrium, the poll data suggest that would only ease the favorability crisis.
Sheppard said if Congress doesn’t act on a buyout plan President Biden could use “discretionary funds” at his disposal. George Washington University’s Jonathan Turley said Sheppard’s idea would “be viewed as highly offensive and dangerous to many jurists and lawyers.”
“The Court does not need either a carrot or a stick,” Turley said. “It requires a respect for the institution as a whole regardless of whether it is yields to the views of Congress or the public. The seats-for-cash offer is as insulting as it is dangerous for the Court.”
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