Lower The Retirement Age to 54, “Retire” The Justices In The Majority, Install Cronies To Uphold New Map

Last week, the Virginia Supreme Court invalidated the new maps by a 4-3 vote. The Virginia Attorney General has signaled he will seek emergency relief with the United States Supreme Court based on the independent legislature theory. I agree with Rick Hasen that this argument will not work under Moore v. Harper. This case did not “arrogate” the power of the legislature. I am not an expert in this area of law, but the majority opinion seems persuasive, and at a minimum seems well within the bounds of a judicial decision.

Are there any other options remaining for Virginia democrats? I thought the answer was no, but apparently there is a theory floating around.

The New York Times describes one last-ditch effort:

One key to the plan would be having Democrats in Richmond lower the mandatory retirement age for state Supreme Court justices, an idea that began circulating among state lawmakers and members of Congress after a column proposing a version of the idea was published on Friday night in The Downballot, a progressive newsletter.

Ms. Spanberger would have to sign off on any legislation that lowered the judicial retirement age. She has not been briefed on the proposal, the people involved in the discussion or briefed on it said. Her spokeswoman, Libby Wiet, declined to comment.

The first step in the process, as discussed on the delegation’s call, would be to invoke a January ruling by a circuit court judge in Tazewell County, Va., that said the 2026 constitutional amendment effort to redraw the maps was invalid because county officials did not post notice of it at courthouses and other public locations three months before a general election.

Democrats would aim to use that ruling to seek to invalidate the earlier constitutional amendment that created the state’s independent redistricting commission by arguing that courthouses across the state did not post notice of it at the time. That would give the legislature the authority to enact a map of its choosing.

Ensuring the plan proceeds would involve the General Assembly, which is controlled by Democrats, lowering the mandatory retirement age for Virginia’s Supreme Court from 75 to 54, the age of the youngest current justice, or less. Virginia judges are appointed by the General Assembly, where Democrats hold majorities in both chambers and could then fill vacancies on the court with sympathetic Democratic lawyers.

In other words, the legislature would “retire” all of the Justices in the majority, install cronies to the court, have the court invalidate the independent legislation commission due to the lack of notice, then enact a new map. And all of this could be done before the August primary. Simple, right?

Thankfully, several Democrats publicly spoke out against this plan. At least one Democrat went on record supporting the plan:

Representative Suhas Subramanyam, a Democrat who represents Loudoun County, Va., said in an interview that he supported doing whatever was necessary to preserve the map voters approved in last month’s referendum — including replacing the state’s Supreme Court justices.

“Everyone has got to have a strong stomach right now; this is a complete disaster waiting to happen if people are timid,” said Mr. Subramanyam, who was on the Saturday call. “We have Republican states ignoring their constitutions and interrupting early voting and ignoring their Supreme Courts all together. We know based on that, Republicans would explore every single option possible to move this forward.”

Here is the proposal in detail from The Down Ballot substack.

Article VI, Section 9, of the Virginia Constitution gives the legislature unlimited authority to set the retirement age for judges. It specifies, “The General Assembly may also provide for the mandatory retirement of justices and judges after they reach a prescribed age, beyond which they shall not serve, regardless of the term to which elected or appointed.”

Current law sets the mandatory retirement age at 73: “Any member who attains 73 years of age shall be retired 20 days after the convening of the next regular session of the General Assembly following his seventy-third birthday.”

This number is arbitrary. States around the country with similar laws mandate retirement across a wide range of ages. Virginia lawmakers can simply lower theirs. Make it 54 for Supreme Court justices—the age of the youngest justice, Stephen McCullough, who joined the majority opinion—and make it take effect immediately. . . .

Then, after the bill is approved, the entire court would retire. A new court would then be appointed that could re-hear the case and have the opportunity to issue a different ruling.

Democrats might prefer other solutions, but if they want to see the will of the voters respected in time for the November elections, there are virtually no other options—and none with as good a chance of success as this one.

The genius of the plan: when judges rule against your preferred cause, simply replace them. I realize there has been much debate about whether a federal judge can be impeached on the basis of his decision. But here, judges would clearly be removed for their decision by virtue of lowering the retirement age to 54. Just for reference, Justice Ginsburg was appointed to the Supreme Court at the age of 60. Justice Holmes was 61.

We often talk about constitutional hardball. This would be murderball. Especially in light of this pressure, I do have to offer some praise for Justice Arthur Kelsey, who wrote the majority opinion. My friend Rob Luther, a professor at Scalia Law, offered these remarks:

I think Justice Arthur Kelsey of the Supreme Court of Virginia is the clear winner of “Judge of the Week” this week. He wrote the opinion in the Virginia redistricting case despite being up for reappointment by a D-controlled General Assembly in January. He’s 64, but mandatory retirement for Virginia judges is 73. Kelsey is known as a conservative but if he’d have voted with the Democrats he probably would have been reappointed. Many squishes would have tried to save themselves. But not Kelsey. Instead, he willingly signed his own judicial death warrant.

People often ask me to show them an example of “judicial courage”— obviously it’s harder for Article III judges—but this is as good an example as I could imagine.

Indeed, this is an act of judicial courage. He will likely lose his position, even if the retirement age is not altered.