Justice Sotomayor on Supreme Court Term Limits

A bit of cold water on a popular Court "reform" from a justice on the left-wing of the Court

Rick Pildes at Election Law Blog calls attention to a post by Fix the Court that includes audio and some excerpts from an interview Justice Sotomayor did at the University of Zurich last year. Fix the Court -- a leading advocate of radical Court "reform" -- seems to want to spin Sotomayor's comments as good news, but Pildes points out that Sotomayor seems clearly skeptical of how judicial term limits might be implemented.

In particular, she seems to think that term limits could not be applied to the current justices, which she correctly points out would mean that the reformers would not actually get what they most care about which is altering the current composition of the Court.

Her remarks include this provocative claim:

In the American system, the problem with a term limit is how will they institute it, because I am promised my job for life, and that can't be taken away constitutionally — I don't believe even with a constitutional amendment — because you cannot have a retroactive law changing something that you've earned.

So that means that a current court at the moment these term limits exist, those justices will be there for as long as they want, so you might not get the value of term limits in the United States because of that inherent difficulty.

Perhaps she has been hanging around judges from other countries so much that she has developed some sympathy with the theory of "unconstitutional constitutional amendments?" Not sure how many of the current justices would agree with her analysis that judges have a property interest in their seat that would supersede even a constitutional amendment, but I suspect a statutory effort to limit the terms of the justices would get a chilly reception at the Court.

Oh well, there's always Court-packing, which I'm sure will become an exciting topic of conversation again as soon as the Democrats reclaim Congress and the White House. Even if it has gone into dormancy for the moment.

You can find the Presidential Commission's discussion of judicial term limits in its report here.

Comments

[Commenter_XY]

To me, judicial term limits are a solution desperately looking for a problem to solve. What do we gain with term limits (I don't see an enforced higher turnover rate as a net plus, it is just more churn). How does it help in the quality of the decisions?

Agree with Justice Sotomayor 100% about the implementation challenges.

[Lee Moore]

I'm not sure I agree.

1. Term limits would contribute something to the goal of getting rid of a GOP majority on the court. Under the current system, Justices can time their retirement to get a like minded replacement, subject the unexpected arrival of the Grim Reaper. Absent him, you can wait an extra five or ten years if you have to. Whereas a time limit constrains your ability to do that to some extent. And although the Reaper has come for two Justices recently, at inconvenient times for preserving the status quo ante, it's not a very common occurrence. No doubt someone could run a Monte Carlo simulation on this, and if they did I'd be confident that we'd get a modelled lefty majority on SCOTUS quicker with term limits (even grandfathering the incumbents) than without.

2. Term limits would reduce the number of geriatrics past their peak on the court. And at the same time would reduce the incentive to elevate callow youths who haven't proven their wisdom and common sense, simply because their life expectancy is longer.

3. All power corrupts. The longer you hold it, the greater the odds on you succumbing to the temptation.

[bernard11]

These are good points.

Strategic retirements, or retirements negotiated with the President, are a terrible practice. Justices should not choose their successors.

[Supremacy Claus]

1) Alzheimer described his disorder in the 1910's. The life term was a mistake in the constitution in retrospect. The others were not ending slavery, and the 20 year patent term. That was a duration based on technological progress in the time of Elizabeth I. We also lose 0.5 to 1 IQ point a year after age 16. So the guy with average intelligence at 50 would qualify for special ed in high school.

2) Why does it take 100 years to get what people know is right? The wrong headed people must all pass away. For example, it was consensus that slavery was wrong in the 18th Century, Montesquieu — The Spirit of the Laws (1748), and Adam Smith — The Wealth of Nations (1776). Yet it took a 100 years, a war and the death of Taney, Chief Justice, to get rid of it.

An 18 year term would insulate the Justices from elections. However it would reduce the time of implementing consensus. correct policies.

[Supremacy Claus]

Nothing will improve while we appoint Ivy indoctrination highly toxic America haters. Ivy grads must be banned. They are bookworms. They know shit about shit, but somewhere they were told they were intelligent. Ban them. De-exempt these treason indoctrination camps. De-accredit them. Defund them. Seize their assets in civil forfeiture, including their patents.

No matter how conservative, move to Washington, you become Deep State. It's like moving to Paris, and becoming French almost immediately, with your cute French accent. Move the Supreme Court to Wichita, KS, the middle of the country, geographically and politically. The self-reliant, pioneer spirit that defines American continues there.

[Brett Bellmore]

"So the guy with average intelligence at 50 would qualify for special ed in high school."

Well, I suppose if they were aging backwards, they would.

[bernard11]

Makes as much sense as the rest of the rant.

[Supremacy Claus]

Obviously, not a lawyer. Go in peace. I wish you well.

[David Nieporent]

and the 20 year patent term. That was a duration based on technological progress in the time of Elizabeth I.

Apparently you didn't read the constitution in your mail order law school. There is no such provision in the constitution.

[Supremacy Claus]

Hi, David. Article I, Section 8, Clause 8, the Patent and Copyright Clause:

"The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Hey, dumbass lawyers, does this clause promote or stifle innovation? We have to cancel this dumbass, toxic profession to unleash innovation in our nation. The Chinese will soon buy us out, thanks to the strangulation of innovation by the dumbass, toxic lawyer profession.

If I invent a cute character, Mickey Mouse, and 20 people come out with copies, I will sue them, now. I will enrich the dumbass, toxic lawyer profession. If I could not sue them, I would be forced to come up with many more cute characters, as each is copied, greatly benefiting the movie public, you dumbasses. Imagine where we would all be, providers and consumers of innovations, if we got rid of the dumbass, toxic lawyer profession.

Intellectual property law will stifle innovation when poorly designed or overextended. The downside mechanisms are well-documented in economics, law, and history.

Here’s a breakdown:

1. Blocking cumulative innovation
Many fields (software, biotech, electronics) depend on incremental improvements.

If an initial patent is too broad, it can block follow-on innovators from building on the idea without paying expensive licensing fees or risking litigation.

Example: Sewing machine patent thickets in the mid-1800s — multiple overlapping patents led to lawsuits that froze the industry until a “patent pool” was formed.

2. Patent thickets and “anti-commons”
In complex technologies like smartphones, hundreds or thousands of overlapping patents exist.

Developers must negotiate with many rights holders — a costly and slow process known as a patent thicket.

Too many overlapping rights can lead to a “tragedy of the anti-commons,” where valuable projects are abandoned because clearing rights is impractical.

3. Evergreening and strategic extensions
In pharmaceuticals, companies often make minor, non-therapeutic changes (new coating, dosage form, isomer) to extend monopoly periods beyond the original term (“evergreening”).

This diverts resources away from breakthrough R&D and toward legal gamesmanship.

4. Deterring small entrants
Startups may avoid certain research areas entirely due to fear of costly patent litigation.

Patent litigation in the U.S. can cost $1–4 million per side even before trial, making it prohibitive for small innovators.

5. Slowing diffusion of knowledge
In principle, patents require public disclosure — but many filings are deliberately vague or obfuscated, making replication difficult.

Trade secrets combined with patents can keep crucial know-how locked away even after a patent expires.

6. Misaligned incentives
When monopoly profits depend on preserving scarcity rather than creating better products, firms may:

Avoid disruptive innovations that could cannibalize existing revenue streams.

Focus on patenting defensively rather than innovating offensively.

7. International development barriers
Strong IP regimes, especially when imposed globally via treaties like TRIPS, can limit technology transfer to poorer nations — slowing adoption of innovations like medicines, green tech, and agricultural improvements.

Historical examples of innovation suppression
Wright brothers’ airplane patents (1900s): Aggressive enforcement in the U.S. slowed aircraft development until WWI, when the government forced a patent pool.

Software patents in the 1990s–2000s: Flood of low-quality, overly broad patents led to “patent troll” lawsuits that drained resources from genuine development.

CRISPR gene editing dispute: Multi-year patent litigation between universities delayed broad-scale commercial use.

[Supremacy Claus]

Hi, David. Article I, Section 8, Clause 8, the Patent and Copyright Clause:

"The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Hey, dumbass lawyers, does this clause promote or stifle innovation? We have to cancel this dumbass, toxic profession to unleash innovation in our nation. The Chinese will soon buy us out, thanks to the strangulation of innovation by the dumbass, toxic lawyer profession.

If I invent a cute character, Mickey Mouse, and 20 people come out with copies, I will sue them, now. I will enrich the dumbass, toxic lawyer profession. If I could not sue them, I would be forced to come up with many more cute characters, as each is copied, greatly benefiting the movie public, you dumbasses. Imagine where we would all be, providers and consumers of innovations, if we got rid of the dumbass, toxic lawyer profession.

Intellectual property law will stifle innovation when poorly designed or overextended. The downside mechanisms are well-documented in economics, law, and history.

Here’s a breakdown:

1. Blocking cumulative innovation
Many fields (software, biotech, electronics) depend on incremental improvements.

If an initial patent is too broad, it can block follow-on innovators from building on the idea without paying expensive licensing fees or risking litigation.

Example: Sewing machine patent thickets in the mid-1800s — multiple overlapping patents led to lawsuits that froze the industry until a “patent pool” was formed.

2. Patent thickets and “anti-commons”
In complex technologies like smartphones, hundreds or thousands of overlapping patents exist.

Developers must negotiate with many rights holders — a costly and slow process known as a patent thicket.

Too many overlapping rights can lead to a “tragedy of the anti-commons,” where valuable projects are abandoned because clearing rights is impractical.

3. Evergreening and strategic extensions
In pharmaceuticals, companies often make minor, non-therapeutic changes (new coating, dosage form, isomer) to extend monopoly periods beyond the original term (“evergreening”).

This diverts resources away from breakthrough R&D and toward legal gamesmanship.

4. Deterring small entrants
Startups may avoid certain research areas entirely due to fear of costly patent litigation.

Patent litigation in the U.S. can cost $1–4 million per side even before trial, making it prohibitive for small innovators.

5. Slowing diffusion of knowledge
In principle, patents require public disclosure — but many filings are deliberately vague or obfuscated, making replication difficult.

Trade secrets combined with patents can keep crucial know-how locked away even after a patent expires.

6. Misaligned incentives
When monopoly profits depend on preserving scarcity rather than creating better products, firms may:

Avoid disruptive innovations that could cannibalize existing revenue streams.

Focus on patenting defensively rather than innovating offensively.

7. International development barriers
Strong IP regimes, especially when imposed globally via treaties like TRIPS, can limit technology transfer to poorer nations — slowing adoption of innovations like medicines, green tech, and agricultural improvements.

Historical examples of innovation suppression
Wright brothers’ airplane patents (1900s): Aggressive enforcement in the U.S. slowed aircraft development until WWI, when the government forced a patent pool.

Software patents in the 1990s–2000s: Flood of low-quality, overly broad patents led to “patent troll” lawsuits that drained resources from genuine development.

CRISPR gene editing dispute: Multi-year patent litigation between universities delayed broad-scale commercial use.

[Supremacy Claus]

It is a serious problem that hits home. Without the strangulation of innovation by the dumbass, toxic lawyer profession, you would now be able to have your ugly ass Dem girlfriend have large, natural tits with big nipples through CRISPR-cas 9 technology. Your daughters would inherit this trait. You could have fixed her hideous face to a stunning AI generated standard of impossible beauty. You could have made her a nice person with a great voice as well. Thank the dumbass, toxic lawyer profession for the nightmare Dem girlfriend you now have. Once gorgeous, chesty, and nice, she would register Republican, of course.

https://www.youtube.com/watch?v=d71M6UPlHZ0&list=RDd71M6UPlHZ0&start_radio=1

[David Nieporent]

This AI-generated slop didn't need to be posted once, let alone twice, and you will note that the word "20" does not appear in there.

"The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

[Brett Bellmore]

In fact, the only place "twenty" appears in the Constitution is the 7th amendment, where the Supreme court feels free to ignore it.

[Supremacy Claus]

That's nitpicking, David. Nitpicking should be punished as criminal perjury. In a case, at the slightest nitpicking, move for a mistrial, for all costs to personal assets, and for prison time for criminal perjury. I was going to do that in my case, but learned, the case was going to soon be mooted. The judge dismissed the case not for failure to provide notice, but for providing it by federal express, not by US mail. I wanted the judge removed, but did not bother. The criminal conduct of the government stopped coincidentally after my filing, after 30 years of criminality and devastating effects. I support severe punishments for government lawyers and for federal judges for their decisions, not for a collateral, irrelevant nitpicking corruption.

The specific patent and copyright terms have changed in time, enabled by this Clause. The Clause crushed innovation. It represents another toxic effect of the dumbass, toxic lawyer profession. It has to be cancelled to save our nation.

[ObviouslyNotSpam]

I saw those grey-boxed posts before logging in--what a hilarious fail.

Decrying the "20 year patent term", and then positing that it was "a duration based on technological progress in the time of Elizabeth I", leaves utterly no room for doubt that his issue was the "20 year" duration of the early patent term. Which he then pretended was not his issue at all. What was it? Any patents? That they weren't lifetime or perpetual?

Very Trumpesque...

[Lee Moore]

We would still get strategic retirements in a term limited system. It's just that the term limit adds an extra dimension into the mix.

If you've had 25 years ruling the world from the bench and your healthy is dodgy and your team is currently in, then your ego has a good chance of deciding - OK time to go, and lap up all the praise from my team. But if you've only had 13 years, and you're still in good health, then you'll want to go on ruling the world for a bit longer.

That's one reason why I think term limits would increase the odds of a change of control - term limited Justices are more likely to take a chance on their replacement not being simpatico. You may have noticed - judges do not lack for egos.

[defaultdotxbe]

I would assume (hope) that in a term-limited system justices appointed to fill mid-term vacancies would only be serving until the end of the predecessor's defined term.
But yeah, without that it would be even more useless.
My biggest issue is it will mean each presidential election cycle we will know which justices the incoming president will replace, and it will make the elections an even bigger circus than they already are, especially if the court is 5-4 and the incoming president will either change or maintain the swing of the court.

[Commenter_XY]

Why are strategic retirements a terrible practice? The POTUS chooses, and the Senate must confirm the replacement; the justice only created the job opening by choosing early retirement. Where is the problem in that?

[Stupid Government Tricks]

It kinda puts paid to the notion touted by lawyers and judges that the rule of law is dispassionate and objective, doesn't it?

[TwelveInchPianist]

Yup. We should stop treating spots as vacant until there is at least a binding announcement of retirement, and maybe an actual vacancy.

[Mr. Bumble]

"...maybe an actual vacancy."
+1

[DaveM]

"Term limits would contribute something to the goal of getting rid of a GOP majority on the court."

When people tell you who they are, believe them.

[Brett Bellmore]

It's like most election 'reforms'; They scarcely even bother hiding the partisan motives.

[Lee Moore]

When people tell you who they are, believe them.

Not at all a good plan for life. When people tell you who they are against their interest then, sure, either believe them, or start looking for a seriously complicated con trick. Otherwise, maintain a healthy measure of suspicion.

Even the sainted Ronnie's co-option of "trust, but verify" does not quite mean what it appears to say. It means "I don't trust you enough to believe your word, I'm gonna trust my eyes."

[Armchair]

So, those are the pros.

What are the cons to term limits?

[Dick King]

You would really like Supreme Court justices to not be thinking about their next gig while they are serving.

[Lee Moore]

Well, at the risk of repeating myself :

"1. Term limits would contribute something to the goal of getting rid of a GOP majority on the court.....

🙂

[TwelveInchPianist]

"...can't be taken away constitutionally — I don't believe even with a constitutional amendment — because you cannot have a retroactive law changing something that you've earned."

Huh? On what planet?

I mean, you would need a constitutional amendment to remove current justices from their positions, but in general, yes, you can have a retroactive law "changing something that you've earned."

[Armchair]

Planet entitlement.

[Lee Moore]

I think it's a rather neat illustration of Conquest's first law -

"Everyone is conservative about what he knows best."

Even barkingly left wing judges who are happy to be radical about pretty much everything, are hidebound "Tories" when it comes to their own offices, and the traditional honors and perquisites that come with them.

[TwelveInchPianist]

She seems to be overlooking impeachment as well.

[Poxigah146]

That statement from her was retarded. A constitutional amendment can literally do anything. You could have an amendment that says "No one with the name Sonia Sotomayor can serve on the Supreme Court," and by definition, it would be legal.

[Longtobefree]

Not if a district judge issues an injunction against the constitution.

[Brett Bellmore]

"No one with the name Sonia Sotomayor can serve on the Supreme Court, and any judge who rules against this amendment shall be treated as resigning their office.", then.

[TwelveInchPianist]

Hey, it's an amendment, go nuts: Any judge voting against this amendment shall be tarred and feathered and run out of town on a rail.

[Dick King]

There's one exception. You can't have a Constitutional amendment giving different states different levels of representation in the Senate.

You could do one thing that I would favor -- make each state have THREE senators, so states never have off years.

-dk

[Hugo S. Cunningham]

> You can't have a Constitutional amendment giving different states different levels of representation in the Senate.

You are correct about Article V. Nevertheless, I suspect equal Senate representation could be changed in two stages: first by amending the Constitution to nullify the last 15 words of Article V, then, only after that amendment is properly ratified, initiating a new (I avoided saying "second") amendment to undo the Article I requirement for equal State representation.

More trouble than it is worth. And tearing out an entrenched protection might provoke secession or civil war.

[mike petrik]

Yeah. I admit that I’ve not been impressed with Sotomayor, but it never occurred to me that she could be that stupid. Wow.

[Brett Bellmore]

It's just the standard living constitutionalism, "The Constitution means what I think would be good policy, regardless of the words." taken to it's final implication: That it will continue to mean that regardless of changes to the words.

[ObviouslyNotSpam]

Cheap nonsense. She was simply wrong, Brett; she did not couch her error in any kind of "living constitutionalism" whatsoever.

Highly embarrassing for a sitting Supreme Court justice to make such a basic mistake, but she wasn't making an argument that the Court had the power to overturn an amendment "because reasons".

[Kazinski]

You could tell Sotomayor's proprietary interest in her seat when she decided not to retire when Biden could replace her.

Maybe it was because she was worried Biden would pick Kamala for the seat to get her out of the way, and in that case I respect her choice.

[Riva]

If life tenure for federal judges was intended to further an objective, apolitical judiciary, this has obviously failed spectacularly as evidenced by current events. The misbehavior of the federal judiciary is a cry for help for reform.

[Poxigah146]

That also goes for the pardon power.

[Krayt]

It's ironic for decades Republicans pushed term limits for Congress to roll out the entrenched deadheads from time to time. Democrats should be wary of a short term Supreme Court gain. The Republicans would not have needed to play the 50 year long game on abortion.

Be careful what you wish for. Ahh, who am I kidding. Politics is the land of what have you done for me lately, and tomorrow is another day eon in the future. Always take a short term advantage. With any luck by four years from now, your bank account will be choked with gold and that inevitable power flip flop will be the junior senators' problems.

[JonFrum]

Ah, the Wise Latina!

I'd like to hear her educate us as to how she 'earned' her position. And of course, the idea that a consititutional amendment could be uncomstitutional is bizarre. A constitutional amendment becomes part of the constitution when it is ratified. No part of the constitution can be unconstitutional - by definition.

In any case, I'd prefer age limits. How long isn't the problem; at what age is. Eighty years old is generous. As it would be for president.

[Kazinski]

I would think any constitutional case about an amendment for term limits would be decided by the DC court of appeals, or another circuit court and then cert would be denied because every justice would recuse themselves.

[Armchair]

Ah, but realistically every DC court of appeals judge should also recuse themselves, because term limits on the SCOTUS would then open up advancement opportunities for those judges.

[Frank Drackman]

Sure, you'd prefer age limits, (the) Zoran Ramadami-Ding-Dong would prefer No Jew limits, I'd prefer No Moose-lums, all of the "Other" side would prefer no Clarence Thomas/Alitos, I'd also prefer Sydney Sweeney give me a morning BJ, (which probably has a better chance of happening than any of this other (Redacted)

Frank

[JonFrum]

You OK, Bro?

[ObviouslyNotSpam]

"...Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

Well, there is that.

[Area Man]

Sotomayor has no problem with functionally amending the Constitution through judicial fiat, but she thinks actual amendments can be unconstitutional—at least if it compromises her ability to keep de facto amending the Constitution. Sheer fucking hubris. I don’t want to hear anymore about threats to democracy from her lot.

[wvattorney13]

Agreed. At bottom of all of our debates in these threads about the powers of the executive, the powers of Congress, judicial review, etc. the underlying assumption was that at rock bottom, We the People, could override anything by passing a constitutional amendment.

Sotomayor is saying that we don't have that power; that someone, perhaps her, can override such a determination by the people. That is borderline impeachable.

[mike petrik]

Yep. It is nuts.

[Frank Drackman]

Surpreme Judges are already "Term Limited", they get one Term.

[TwelveInchPianist]

"the theory of "unconstitutional constitutional amendments?"

I mean, an amendment depriving Rhode Island of its Senators would be unconstitutional, but there's nothing preventing an amendment changing the lifetime tenure of court judges.

[wvattorney13]

Couldn't you do it in two steps? First, pass an amendment amending the portion of the constitution that says that you cannot pass an amendment denying a state equal suffrage in the Senate. Second, pass an amendment denying RI its senators.

That would work, no?

[TwelveInchPianist]

1. Even if you could, an amendment doing it in one step would be still be unconstitutional, so the point about an unconstitutional amendment stands.

2. I don’t think you can, consistent with the language of Article V.

[wvattorney13]

"I don’t think you can, consistent with the language of Article V."

But we've just amended that language in step one. Why can't we not now take the next step?

I guess my whole problem is with unamendable portions of a constitution. The dead hand of the past cannot require us to always follow their version of society unless we engage in violent revolution. There should always be peaceful ways to get what we want.

Imagine if the Corwin Amendment had passed in an alt version of history. Would we really be here in 2025 telling the rest of the world that we truly want to abolish slavery, but that one county in Mississippi won't give it up and we simply can't force it?

What gives one generation a special power to pass an amendment that is unalterable in the future?

[TwelveInchPianist]

"But we've just amended that language in step one. Why can't we not now take the next step?"

The proviso applies to all amendments. Amendments created via Article V only count as part of the constitution if no state is deprived if equal suffrage in the Senate. It doesn't matter how many amendments combine to purport to remove equal suffrage, if they have that effect, they don't count.

That's a fair reading of the text, and is consistent with the intent, which is to entrench equal suffrage in the Senate.

"Imagine if the Corwin Amendment had passed in an alt version of history. Would we really be here in 2025 telling the rest of the world that we truly want to abolish slavery, but that one county in Mississippi won't give it up and we simply can't force it?"

What if there were no Article V? One can always alter or abolish the government by extraconstitutional means. Assuming SCOTUS doesn't just declare that it's part of the commerce power.

[wvattorney13]

"Amendments created via Article V only count as part of the constitution if no state is deprived if equal suffrage in the Senate. "

Again, in the hypo, we just amended that provision out of the Constitution. It is no more. It went bye bye.

There is nothing in that text that says that itself cannot be amended.

[TwelveInchPianist]

Constitutional text doesn't go bye-bye. For example, the three-fifths clause is still part of Article I. But it is inoperative because, per Article V, the 13A and14A are treated as part of the Constitution.

If we were to pass two amendments as you suggest, they would not be treated as part of the constitution under Article V because that would result in states being deprived of equal suffrage in the Senate.

[Brett Bellmore]

On the contrary, if the requisite supermajority of states ratified them both, the Court would easily understand that any ruling against them would just result in the justices being impeached. They chose their battles, you know.

[TwelveInchPianist]

I dunno. They make unpopular decisions all the time without getting impeached.

[Brett Bellmore]

They still chose their battles. If you've got a supermajority to ratify an amendment, you've pretty trivially got a supermajority to impeach justices who say the amendment is unconstitutional.

Judicial power is kind of brittle, it's absolute until it suddenly breaks, and while the justices may make mistakes about how hard they can push against the elected side of government, they never forget that there IS a limit somewhere that they don't dare exceed.

[Brett Bellmore]

"they never forget that there IS a limit somewhere that they don't dare exceed."

Except for Sotomayor, I guess...

[JoeFromtheBronx]

Great Britain had a somewhat comparable "unamendable" provision. They removed the barrier (there was no literal requirement against that). And then removed the provision.

I think there are various ways to defang the equal suffrage provision. For instance, every state can have two senators, but there could be a bunch of "free" senators that don't represent any state. They can be selected by population.

But also, the text does not literally say that the barrier itself can be amended away. If two supermajorities of the people's representatives decide to do so, I think it would be legitimate.

It's somewhat academic. When we reach that point, the nation might be ready for a new constitution overall, making the whole thing moot.

[Brett Bellmore]

If it comes to it, you could abolish the Senate, or reduce it to a purely ceremonial role.

"When we reach that point, the nation might be ready for a new constitution overall, making the whole thing moot."

Given Sotomayor's reasoning, even that wouldn't cut it.

[JoeFromtheBronx]

But also, the text does not literally say that the barrier itself can be amended away. If two supermajorities of the people's representatives decide to do so, I think it would be legitimate.

Sigh.

The text does not literally block amendment by a two-step approach. I use the word "literally" here intentionally.

Maybe, it's implied.

Not conclusive. But, even if it was implied, the implication does not provide a firm barrier to modern day repeal, done by two supermajorities to underline how firm the people believe in it.

[TwelveInchPianist]

"But also, the text does not literally say that the barrier itself can be amended away. If two supermajorities of the people's representatives decide to do so, I think it would be legitimate."

It arguably says that, as I point out above. But in any event, it's hard to see how it's legitimate for a bunch of smaller states who only agreed to join the union with a certain level of protection, suddenly be deprived of that protection.

[TwelveInchPianist]

"but there could be a bunch of "free" senators that don't represent any state. They can be selected by population."

That would violate the provision, to the extent that the more populous states have a greater say in picking the free senators.

[JoeFromtheBronx]

smaller states who only agreed to join the union with a certain level of protection

They agreed for a variety of reasons. There are multiple provisions that protect small states. The very debate is what the "level of protection" of one provision entails.

One specific possible meaning of one provision among many being amended centuries later, with small states involved in the process, played a rather limited role here.

" a greater say in picking the free senators"

The provision regards each state having "equal suffrage." That is generally understood to mean the same number of senators. Suffrage generally means voting.

You are arguing something wider -- "equal say" -- even if the people as a whole, not divided by states, are voting for the free senators. That is something of a reach.

At best, it is not compelled by the text, and two supermajorities amending in this way is legitimate.

[TwelveInchPianist]

"You are arguing something wider -- "equal say" -- even if the people as a whole, not divided by states, are voting for the free senators. That is something of a reach."

It's not a reach. If the people as a whole, who come disproportionately from populous states, get to choose senators, then states don't have equal suffrage. That's the whole point of the Senate.

And the text of Article V says that Amendments are valid as part of the Constitution only if states aren't deprived of equal suffrage in the Senate. So the text precludes the amendments you want to make.

[JoeFromtheBronx]

If the people as a whole, who come disproportionately from populous states, get to choose senators, then states don't have equal suffrage.

Fifty states with 100 votes sounds like "equal suffrage" to me. Each state has the same votes.

You moved on from the specific provision to talk about "greater say in picking." TX and VT still have two senators, but because TX has more population & plays a bigger role in picking free senators not tied to any state, equal suffrage is violated.

Anyway, even if it is a reasonable interpretation, it is far from compelled. So, as another Joe said in another context, I think it's something of a "moo" point.

That's the whole point of the Senate.

Do you mean the provision?

The Senate has various "points," including specific roles. Madison wanted a Senate apportioned by population. It would still have a "point" as a Senate if he won out.

It's entirely academic because you're not going to get 3/4ths of the states to agree to amend their senate representation way.

Safe bet, but it's not necessary to say, so I didn't say it. Also, I think some things seem patently impossible but at some point happen.

[TwelveInchPianist]

"Again, I say it's a reach."

And I say it's precisely what the equal suffrage clause was trying to prevent.

"I think it's something of a "moo" point."

Like a cow with an opinion. Who cares, it's a cow!. But of course I hadn't realized that there was any doubt.

[David Nieporent]

It's somewhat academic.

It's entirely academic because you're not going to get 3/4ths of the states to agree to amend their senate representation way.

[Kazinski]

This isn't So to mayor's first foray into the unconstitutional constitutional amendment quagmire.

If you'll remember her theory in the Michigan anti-affirmative action state constitutional amendment, her theory was that while there no federal constitutional right to AA, yet, but once it was conferred by state law and policy, then it was unconstitutional to amend the state constitution to end it.

[Kleppe]

Clearly insane and indefensible understanding of how the Constitution works. Nice job confirming her to the bench for life!

[Syd Henderson]

Hardly insane. When they did the 22nd Amendment they grandfathered Truman in (and he did run in 1952 until he was beaten in the New Hampshire primary by Estes Kefaufer--which is a very good sign you should drop out). If they do term limits for Supreme Court Justices they'll grandfather in the justices on the Court in the same way or it won't be ratified.

[wvattorney13]

That misses the point. Sotomayor's argument is that no constitutional amendment could be passed which deprives current justices of their seats. That is demonstrably wrong.

That amendment could have applied to Truman. The amendment could have stripped Truman of his office. It could have demanded that he be summarily executed.

A provision of the constitution, by definition, cannot be unconstitutional.

[Mr. Bumble]

"A provision of the constitution, by definition, cannot be unconstitutional."
Tell that to the CA supreme court.

[mike petrik]

Yes, insane. Think more clearly.

[pts]

If she wants a contract theory of constitutional interpretation, give her the appropriate contract remedy. Pay her for the rest of her life, but she can't sit on the court because the constitution, as amended, prohibits it.

[Bored Lawyer]

She's not on the Court for the money, she's on it for the power.

Could Congress pass a term-limit law (without a Constitutional amendment) that still kept paying the justices their salaries for life? I don't think that would work.

[Brett Bellmore]

The difference is that the actual text of the Constitution establishes that they hold their offices for life, barring impeachment, while absolutely nothing in the text of the Constitution support Sotomayor's claim.

[Bored Lawyer]

"I don't believe even with a constitutional amendment "

And with that, she confirms herself as a judicial tyrant.

[mike petrik]

Exactly.

[Randal]

The question really is, how do we incentivise executives to nominate good jurists rather than just outcome-oriented choices like all of Trump's Dobbs nominees?

I like the West Wing solution that justices should be nominated in pairs.

[Heresolong]

So your argument is that all the ones that supported something you didn't like are, by definition, not good jurists? Care to actually analyze the Constitutional and legal arguments in Roe and Dobbs?

[Sarcastr0]

Literally the opposite of what he said.

[TwelveInchPianist]

The double opposite!

[Malika the Maiz]

If a constitutional amendment was ratified in the immediate future stating that no person shall occupy the office of the President who was 80 or older would that mean Trump would cease to be President at 12 am June 14th of next year? And who could sue to have it enforced?

[Bored Lawyer]

(1) Yes. Assuming that Congress who passes the amendment was too stupid to not make it apply only prospectively. (See the 22d Amendment, which had such a provision.)

(2) Anyone who would be affected by his holding that office. The First Executive Order that affects someone would be challenged as not ordered by the president.

[Frank Drackman]

Now who’s the made up character commenting on made up situations? And it’s simple, “45/47,48?” Could just “Identify” as 79, not any more ridiculous than Dr Dick Levine wearing a dress and calling himself “Rachel”

[Malika the Maiz]

Ever notice how those insulting trans persons as weird are often themselves the kind of weirdo who performs a fake persona who writes like a drug addled third grader on a legal blog comment section all day?

[Frank Drackman]

Queenie making it about him, as usual

[David Nieporent]

Speaking of weirdos, what kind of idiot keeps responding to such a person? You are not accomplishing anything except annoying every other commenter here, and if you're amusing yourself, then you need to get a life.

[JasonT20]

In the American system, the problem with a term limit is how will they institute it, because I am promised my job for life, and that can't be taken away constitutionally — I don't believe even with a constitutional amendment — because you cannot have a retroactive law changing something that you've earned.

No one "earns" a politically appointed position. They get it by virtue of having been picked by one elected official and confirmed by a majority of another group of elected officials.

Also, she has to be falling for the bias of having the job. The only part of the Constitution that comes to my mind as not being subject to amendment, as far as I can tell by reading the damn thing, is the equal representation in the Senate.

[Brett Bellmore]

She's actually promised her job for "good behavior", and trying to hold onto here seat after an actual constitutional amendment deprived her of it would hardly be good.

[ReaderY]

With the sole exception of the right of equal state representation in the senate, you could do anything by a duly passed and ratified constitutional amendment. You could re-institute slavery. You can pass a Sottomeyor-specific amendment attainting Justice Sottomeyer of treason or any crime you want and have her immediately arrested and executed by being boiled alive in the public square or any cruel or unusual punishment you want without trial or any further ado. Of course you can pass an amendment kicking her off the Supreme Court specifically, by name.

[Syd Henderson]

You can come up with all sorts of silly scenarios, but to get a term-limit provision to the Supreme Court you have to get two-thirds of each house of Congress to agree as well as three-quarters of the states, and that won't happen without a grandfathering provision.

Packing the Court is constitutional--in fact the Radical Republicans did it in the 1860s--but a bad idea, since the opposing party can do it next time they get a Supreme Court majority. We could and maybe should increase the size of the court, but there would have to be some sort of agreement between the parties to balance the viewpoints of the incoming judges, and I don't see either party honoring that at the moment.

[Brett Bellmore]

"and that won't happen without a grandfathering provision."

I suppose that depends on how much they irritate Congress, but probably.

[Bob from Ohio]

"in fact the Radical Republicans did it in the 1860sin fact the Radical Republicans did it in the 1860s:

I believe they reverse "packed" by reducing the size of the court so Johnson could not appoint someone.

[Davy C]

"you could do anything by a duly passed and ratified constitutional amendment. You could re-institute slavery."

Eh... even if you managed to get 3/4 of the state legislatures to agree to re-institute slavery, it would be hard to actually *do* it, as you would immediately be faced with violent revolution. It's beyond the pale and removing justices isn't.

[JoeFromtheBronx]

If slavery or involuntary servitude were allowed, it would likely arise out of some specific situation, involving some group that the government would have the raw force to suppress, as was present during the days of chattel slavery in the United States.

Slavery is of a special level of bad, but that doesn't mean that it won't exist again in some fashion.

[Michael Ejercito]

Three-fourths of the state would not be able to ratify it without broad public support across multiple demographics.

[ObviouslyNotSpam]

Easy.

All Trump has to do is say that the amendment will finally enable them to "own the libs", and the Trumperverse will respond accordingly.

[Brett Bellmore]

"You could re-institute slavery."

The 13th amendment actually still allows for it, but only as a penalty for a crime. But not heritable, obviously.

[Commenter_XY]

If you want to change the composition of SCOTUS, then use impeachment as the proper vehicle to do so. That is how you 'term limit' a Judge (or Justice). This entire movement has a political origin and motive, so use an expressly political removal tool (impeachment). I do not see anything even remotely resembling impeachable conduct by any sitting SCOTUS Justice.

Federal Judges tend to resign when they have impeachable conduct (to avoid that entire process?). At least, that is what I see. We are only talking about 750 judges or so in the Fed judiciary.

It is not a good idea to mess with a structure that has worked for more than a century, esp in a polarized political environment.

[Longtobefree]

Impeachable conduct is anything the house says it is.
If the senate agrees, that sort of is a term limit.

[ReaderY]

If enough people violate their oath of office, you don’t need impeachment. You can simply have them shot. Why not propose that?

And historical practice follows the text more closely than you are letting on. While the House has from time to time impeached for political reasons - Justice Chase comes to mind as an early example - the Senate has historically been unwilling to vote to convict in these cases.

[Frank Drackman]

Remember the Lib Columnist Julian Malveaux who in 1994 hoped Ginny Thomas would "feed him lots of eggs and butter"(and we're the Race-ists?)
Here's the actual quote
"I hope his wife feeds him [Clarence Thomas, Justice, U.S. Supreme Court] lots of eggs and butter and he dies early like many black men do, of heart disease. . . . He is an absolutely reprehensible person."
Talk about reprehensible persons,
She's currently Dean of the new college of Ethnic Studies at California State University, Los Angeles.

Funny that 31 years later Judge Thomas is still on the Court and Ichabod Crane Souter lies a-mouldering in the Grave (until New Hampshire claims "Eminent Domain" over the cemetery)

Frank "where's the Sickle Cell when you really need it?"

[JoeFromtheBronx]

Many different possible changes can be made to the courts. There are certain reforms (no need for scare quotes) that have wide support. Others would not receive much opposition.

This post is a bit of trolling -- "even Sotomayor."

Reforms change a system that all players have a self-interest in continuing. This includes judges who would rather keep their jobs.

==

I think term limits are a reasonable proposal. Taking everything into consideration, I think an amendment is the best approach.

Some law professors offer another way. Who knows. Truly stupid ideas are now the law of the land. I won't say their ideas are "truly stupid," but yes, I'm not convinced by them.

===

I have pushed back against those who deem term limits a full alternative (like the idea or not) against court expansion.

Because, yes, I think (the "even by amendment" thing is silly), I don't think it will be applied to current membership on the Supreme Court.

My proposal -- if statutory term limits were a thing -- would be a temporary expansion until term limits were firmly in practice. Eventually, you would have nine justices with fixed terms.

==

Anyway, I welcome various reforms, including binding ethics (maybe with Steve Vladeck's inspector general idea), qualified immunity reform, and yes, long-term, term limits.

[Frank Drackman]

For the second time, the Surpremes are already "Term Limited" they get one term.

[Incunabulum]

I wonder if Sotomayor has heard of the abolition of slavery? Where we removed a property interest from a whole bunch of people - and without 'just compensation'! - through a constitutional amendment.

And she hasn't *earned* a job for life - she has merely been appointed to such a position - or is she saying she can't even be impeached?

[Incunabulum]

Apparently its a 'living Constitution' when judges can interpret it as they see fit but the proles have limits on how they can grant or remove privileges from their government?

[JoeFromtheBronx]

Perhaps she has been hanging around judges from other countries so much that she has developed some sympathy with the theory of "unconstitutional constitutional amendments?"

Not necessary. The concept has a long history in this country.

I would say dubiously, but anyway, another troll.

[David Nieporent]

I am a supporter of 18 year term limits, with each (full term) president getting two appointments. The problem is that — like everything else in Washington — it only works if the politicians act in good faith. How do you stop the senate from pulling a McConnell-Garland to deny a president one (or two!) of his scheduled appointments?

Now, you might provide that if the senate doesn't hold a vote w/in X days, the nominee is automatically confirmed. But then the senate could just automatically serially vote down each of the POTUS's nominees w/o considering their merits, leaving an opening for the next POTUS.

You could try addressing that by saying that if they've refused to confirm anyone by the end of his term, the outgoing president gets to make an appointment on his way out the door w/o requiring advice and consent. But even if you were willing to give up that check-and-balance, what if the president games the system by nominating a series of clearly (to everyone) unacceptable choices, thereby 'forcing' the senate to vote no on each?

[TwelveInchPianist]

"How do you stop the senate from pulling a McConnell-Garland to deny a president one (or two!) of his scheduled appointments?"

You require 60 votes to confirm a justice, so that if the Senate does that, the minority can retaliate when the Presidency changes hands. Then such a practice wouldn't result in the opposite party getting the seat.

At least, that's effectively how we did it until right before the Garland nomination.

[Mr. Bumble]

Just get an amendment first.

[JoeFromtheBronx]

The system as a whole only works if there is some level of good faith. This problem (a constitutional sixty-vote limit for justices might help, as a reply noted, though there is likely a workaround to that, too) of "parchment barriers" again plays a role.

Some rules help things along, but only up to a point.

[ObviouslyNotSpam]

Once the "good faith" is gone, all that's left is a race to the bottom.

Goodbye, USA!

[River]

Seems it's not just elected political leaders who can get a little too full of themselves. Justice Sotomayor is just wrong here. For one thing, I'm not sure why a constitutional amendment couldn't retroactively deprive someone of something. For another, even if there were such a restriction on constitutional amendments, there is nothing retroactive about removing a justice after such an amendment is ratified. Term limits absolutely can be imposed on sitting justices through constitutional amendment. The only reason it won't happen is because America is too polarized to pass or ratify a constitutional amendment. Our constitution is very clear that there is only one thing that cannot be changed by constitutional amendment - the equal representation of the states in the senate.

In the unlikely event that such an amendment were passed and ratified, and Justice Sotomayor chose to show up at the courthouse after her term ended, I think at that point the remaining legitimate judicial branch officials would be duty bound to ignore her, to not let her sit with the court, to not publish anything she might write purporting to be a judicial opinion, to not treat any case she participated in after her term ended as an actual precedent. If the constitution is amended to impose term limits on sitting justices, those justices do not get to just ignore it.

[Incunabulum]

As an example, repealing the 2nd and saying self -defense (and firearms) is illegal wouldn't automatically mean everyone who currently has a firearm would remain free to continue to possess and use them as they do now.

[River]

If a new constitutional amendment repealed the second amendment, and either that amendment or a statute then made it illegal to own a firearm? That is the scenario you are describing? In that case, no, people who currently own firearms would not remain free to continue to possess and use them. People who currently own firearms would have to give them up or they would become criminals. That is absolutely a sort of change a constitutional amendment can make. I think that would follow straightforwardly from the hypothetical text of such amendment, but if you want an analogy, the 13th Amendment didn't just forbid the acquisition of new slaves, it removed the property rights of then-existing slave owners.

[Brett Bellmore]

It's rather difficult to imagine such an amendment actually getting ratified in modern America, but, yes, hypothetically.

[Brett Bellmore]

"The only reason it won't happen is because America is too polarized to pass or ratify a constitutional amendment."

Well, Congress for various reasons has stopped originating amendments, but the 27th amendment was ratified not so long ago.

The relevant polarization is between Congress and the general population: There are some amendments, (Term limits, a balanced budget amendment, probably a few others.) that would be easily ratified, but Congress has no desire to originate them.

On the other side, the last couple of amendments Congress did originate got shot down by the states. (ERA and DC voting rights.)

So the real problem is a missmatch between how Congress would like the Constitution amended, and how the general public would.

That's the sort of problem constitutional conventions exist to solve...

[JoeFromtheBronx]

"But of course I hadn't realized that there was any doubt."

It's helpful to know in practice this is a relatively small subset.

What is really without "any doubt." A larger set is those things for which some people think there isn't any doubt.

[The Angry Hippopotamus]

because you cannot have a retroactive law changing something that you've earned.

Admittedly, I am not an attorney; however United States v. Hemme, 476 U.S. 558 (1986), Welch v. Henry, 305 U.S. 134 (1938), and United States v. Carlton, 512 U.S. 26 (1994), which affirmed the ability of Congress to retroactively change tax law, thereby allowing the passing of laws that "chang[e] something that you've earned", are in direct contradiction with what she said.

If Congress can pass laws retroactively changing tax code, it would seem to follow Amendments to the Constitution of The United States of America, can be applied to current office holders, including Supreme Court Justices, if the wording of the Amendment so allows.

[Mr. Bumble]

Not withstanding any court decision, I thought ex post facto laws were forbidden.

[David Nieporent]

You're mistaken. Or, rather, you're right but misunderstand what they are. The ex post facto ban only applies to criminal laws. There may be due process problems with some retroactive laws in the civil context, but the ex post facto provision isn't applicable.

[River]

David is right that the ban on ex post facto laws only means criminal laws. Another equally significant problem with appealing to the ban on ex post facto laws is that that ban is located in the constitution, which means it can be overridden by constitutional amendment. An amendment absolutely can be ex post facto, even though a statute cannot.

[The Angry Hippopotamus]

In 1798 the U.S. Supreme Court in Calder v. Bull, determined that the limitation on ex post facto laws relates only to criminal matters.

[ObviouslyNotSpam]

Yes, and, as noted above, it only limits Congress and the states.

The only aspect of the Constitution which cannot be amended under the terms of the Constitution is the Senate "equal-suffrage" rule.

[Jack Jordan]

Justice Sotomayor highlighted how federal judges (including SCOTUS justices) lie about our Constitution to undermine it and feather their own nests ("I am promised my job for life, and that can't be taken away constitutionally").

Our Constitution clearly does not promise any public servant a job for life. In fact, Article I Section 9 emphasizes that "No Title of Nobility shall be granted by the United States." (Section 10 even emphasizes that "No State" can "grant any Title of Nobility.") A title of nobility is for life. In contrast, Article III emphasizes that all federal "Judges, both of the supreme and inferior Courts, shall hold their Offices [only] during good Behaviour."

This was a very significant point in the discussion of our Constitution. This was an important principle that was invoked repeatedly to explain why the people should ratify the Constitution. For example, the importance of "good behavior" was emphasized repeatedly in The Federalist Papers (in at least Nos. 9, 39, 70, 78 and 79).

Ours is “a republic, where every magistrate ought to be personally responsible for his behavior in office.” Federalist No. 70 (Alexander Hamilton). Having “courts composed of judges holding their offices” only “during good behavior” is a “powerful means” for ensuring “the excellences of republican government may be retained and its imperfections lessened or avoided.” Federalist No. 9 (Hamilton). “The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.” Federalist No. 39 (James Madison). Only federal “judges” who “behave properly, will be secured in their places for life.” Federalist No. 79 (Hamilton).

“[T]here can be no room to doubt that” the failure to establish “GOOD BEHAVIOR as the tenure” of “judicial offices” “would have been inexcusably defective.” Federalist No. 78 (Hamilton). Absolutely “all judges” appointed to federal courts “are to hold their offices” only “DURING GOOD BEHAVIOR.” Id. “The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government.” Id. It was included in the Constitution to be an “excellent barrier to the encroachments and oppressions of [every] representative [authority, including judges]. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.” Id.

[ObviouslyNotSpam]

Titles of nobility can indeed be revoked.

Ironically, that's what the term, "Bill of Attainder" in Article I Section 9 refers to. Thus, the Constitution prohibits both the granting and the revoking of a title of nobility...

[Brett Bellmore]

I suppose revoking a title of nobility could fall under "bill of attainder", but what "bill of attainder" actually refers to is the general class of laws that assign guilt or punishment to people without an intervening trial.

[Jack Jordan]

We don't need an amendment to our Constitution. Congress has the power to enact legislation that would require Congress to impeach, convict and remove a set number (e.g., 5) federal judges every year for "high crimes" or "high misdemeanors" except to the extent that it can't be proved that judges committed high crimes or misdemeanors. It would not be hard to prove that many federal judges (including SCOTUS justices) committed high crimes or high misdemeanors.

Congress (with President John Adams) in 1798 did enact such a law and thereby shed light on the meaning of high misdemeanor. They enacted "An Act for the Punishment of Certain Crimes Against the United States" (also known as The Sedition Act of 1798). See https://constitutioncenter.org/the-constitution/historic-document-library/detail/the-alien-and-sedition-acts-1798.

Section 1 declared that "ANY persons" who "unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty, and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, [ ] shall be deemed guilty of a high misdemeanor."

The foregoing federal criminal statute fits some judges (including SCOTUS justices) like a glove. But it had a sunset provision. Section 4 declared it would "continue and be in force until the third day of March, one thousand eight hundred and one, and no longer." Even so, other analogous federal criminal statutes govern public officials' misconduct, including 18 U.S.C. Sections 371, 241 and 242.

The trials of judges by the Senate for high crimes or misdemeanors should be treated as legal, not merely political, proceedings and they should be governed by rules of law, not mere caprice of political players.

[Brett Bellmore]

"Congress has the power to enact legislation that would require Congress"

Bzzzt! Congress does not, in fact, have the power to enact legislation requiring Congress to do diddly squat. It's a basic principle that no legislature can constrain it's future self.

They could enact a law presuming to do that, but the next Congress could vote to violate it.

[Sisu]

Article. III., Section. 1. "... The judges, both of the supreme and inferior courts, shall hold their offices during good Behaviour, ..."
https://www.law.cornell.edu/constitution/articleiii

La "wise latinx", might want to read the US Constitution (not the Puerto Rican version); and consider the legal understanding of the case law and meaning of "good Behaviour" at the time of ratification of the Constitution, as well then the 14th Amendment.

The wise latinx has long been exhibiting memory issues, aka (to be polite) "mild cognitive impairment", lack of "inhibition mechanisms", megalomania, etc ... No Clue What "originalism" means; nor what what "history and text" means.

J. Sotomayor is the most recent, most prominent example of "incompetence"; a long known reason for removal for: "bad Behaviour".

To state the obvious: All "qualified" attorneys, regardless of "state license", know that "The Constitution contains 'no unnecessary words'".

The supreme Court, being the "Supreme Court" has an administrative duty to administer and ensure "competency of all Article. III. judges. Thus the "eight" should remove J. Sotomayor for "incapacity", "incompetence", progressive "intellectual deficit", ...

Take action, expecting Her estate to contest "removal" over the next 25 years. But, the People should expect that the "government" should (HT spike lee) "do the right thing" - Sotomayor will be less stressed and the Country will be able to focus on the future without the burden of Sotomayor legislating from the grave.

[River]

Even if you were right about Sotomayor's cognitive state, which I doubt, eight Supreme Court justices are not empowered to remove the ninth. Only congress can do that by impeachment. If a justice were so cognitively impaired as to be unable to perform their duties, and yet refused to resign, the proper course I think would be for the other eight justices to approach congressional leadership, present the evidence of that impairment, and ask for impeachment.