The Virginia Supreme Court struck down the Democratic redistricting map last week. Within 48 hours, Virginia Democrats were exploring a proposal to replace the entire court by lowering the mandatory retirement age for judges. The proposal has been described as “audacious and possibly far-fetched.” The description is accurate. It is also, given that it is being seriously discussed, worth examining on its actual merits.
Virginia Supreme Court justices are appointed by the General Assembly and serve twelve-year terms. The mandatory retirement age is currently seventy. The Democratic proposal would lower that age in a way that would require sitting justices to leave the bench, creating vacancies that the current Democratic-controlled General Assembly could fill. The legal theory is that the legislature has the authority to set the retirement age, and that doing so prospectively — applying to current sitting justices — is within the scope of that authority.
The argument that this is a legitimate exercise of legislative power rests on the structural position of state courts within state constitutional frameworks. Virginia’s judiciary is, unusually, directly accountable to the legislature for its composition. Judges serve at the pleasure of the General Assembly in a way that federal judges do not. The legislature that appoints can, in this argument, also set the conditions under which those appointments continue. Lowering a retirement age is a policy decision, not a removal proceeding, and the legislature has broad authority over judicial structure.
The argument that this is court-packing by another name rests on the evident purpose of the proposal. The redistricting map was struck down. Democrats want a different court. The mechanism chosen — lowering the retirement age — would produce a different court. Whatever the technical legal theory, the operational effect is indistinguishable from replacing justices who ruled against your preferred outcome with justices who might not.
The redistricting context matters for understanding the stakes. The Virginia Supreme Court struck down a map that would have given Democrats a 10-to-1 congressional advantage. The court that did so was not constituted by Democrats. Democrats now control the legislature. The proposal under discussion would allow the legislature that drew the map to reshape the court that struck it down.
That sequence — draw the map, lose in court, replace the court, redraw the map — describes a cycle in which judicial independence functions only until the losing party acquires sufficient legislative power to circumvent it. Whether Virginia Democrats proceed with this proposal or not, the fact that it is being seriously considered is itself a data point about the state of institutional restraint in American governance.
The proposal is far-fetched in the specific sense that it would require overcoming significant legal challenges and potentially trigger a constitutional crisis in the state. It is not far-fetched as a reflection of where American institutional politics currently stands.
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