Grandfathering the current justices such that there were 21 seats rather than 13 initially would be consistent with precedent and still be better than the status quo. Or increase the number of temporary random seats to further dilute the holdovers...
I suppose this assumes that the supposed constitutional objection is to the transition from life tenure to this. If the objection is just that SCOTUS justices can't be selected by sortition at all, then grandfathering doesn't solve the problem.
So you need a new statute: S1: "There is hereby a created a Special Court of Appeals consisting of one judge from each court of appeals selected by lot." S2: "The SCA shall have exclusive jurisdiction over any matter involving the composition of SCOTUS." S3: "Certiorari shall not run to the SCA."
The idea is to solve this via statute — evading the constitutional issue of life tenure by preserving said tenure w/in the Article III courts, but redefining the membership of SCOTUS. I actually like the idea of grandfathering if that becomes an interim necessity …
I forget offhand who proposed this earlier, but an interesting, clearly const variant of the sortition idea is to replace certiorari with, say, a COA that could be granted only by a randomly-selected panel of circuit judges, not SCOTUS. So SCOTUS gets to keep life tenure but not docket control.
That would work for me — anything goes, as long as it a) requires no constitutional amendment and b) stops the justices from using life tenure to grant themselves a policymaking role.
Agreed. I think I personally prefer using the A3-life-tenure fallback to support statutory term limits rather than sortition, b/c I think there is a legitimate role for nomination & confirmation, but they both rely on the same insight and both would probably be preferable to the status quo.
But it’s difficult to conceive of a credible argument — regarding a judiciary in which Supreme Court justices formerly rode circuit — that having appellate judges make the reverse trek to SCOTUS flies in the face of the Constitution.
Also, Article I requires there to *be* a CJ, but does it have to be a sitting member of SCOTUS? Couldn't Cong vest the role of "Chief Justice of the United States" on, for example, the Chief USCJ with the earliest date of commission? (Or for that matter the senior-most judge picked by sortition?)
The hinky part there, to my mind, is the fact of Roberts’ confirmation to the role of chief justice. I’d rather avoid the vulnerability of having to litigate his claim to the title. (That said, I also welcome making him captive on a court yanked from his control — made superfluous, as a punishment.)
I agree that you probably can't replace the current CJ in this model. Any change to how that title is vested would have to be effective upon his death or resignation.