Following a recent ruling by the Virginia Supreme Court that struck down a voter-approved redistricting amendment, some Democratic strategists and lawmakers floated an "audacious" proposal to effectively replace the court's justices.
The Proposed Method
Instead of using standard removal procedures, the floated plan involves the General Assembly passing a law to lower the mandatory retirement age for justices from its current level (73 or 75) to 54.
- Impact: Because the youngest sitting justice is 54, this change would immediately force the entire seven-member court into retirement.
- Goal: This would allow the Democratic-controlled General Assembly to appoint seven new, "sympathetic" justices who could then rehear the redistricting case and potentially reverse the previous ruling before the upcoming primary.
Is It Legal?
The legality of this "gut-and-pack" scheme is highly controversial and currently untested:
- Arguments for legality: Proponents point to Article VI, Section 9 of the Virginia Constitution, which grants the General Assembly "unlimited authority" to set a mandatory retirement age for judges, regardless of their current terms.
- Arguments against legality: Many legal experts and opponents argue this would be a clear violation of the spirit, and potentially the letter, of the constitution. Critics contend it bypasses the only constitutional method for removing a judge before their term ends: impeachment.
- Likely Outcome: Most legal observers believe the current Supreme Court of Virginia would strike down such a measure as unconstitutional if it were enacted.
Is It Justified?
Whether the move is "justified" depends on one's perspective on judicial power and democratic will:
- Democratic Perspective: Supporters of the plan, such as those discussed in reports by Cardinal News and The New York Times, argue that the court "contorted the law" to override the will of three million voters who approved the redistricting referendum. They view it as a necessary step to protect democracy from a "partisan" court.
- Republican/Critic Perspective: Opponents, including Virginia Attorney General Jason Miyares, label the plan as "court packing" and a "breathtaking" assault on the state's constitution. They argue that the court was simply upholding mandatory constitutional procedures for amendments.
Governor Abigail Spanberger has reportedly stated she does not support replacing the justices to retry the redistricting case
