This is not constitutional hardball. It is murderball.
A week ago, the Virginia Supreme Court voided the recently drawn electoral maps in a 4-3 decision. The Virginia Attorney General has indicated he will seek emergency relief from the United States Supreme Court, invoking the independent legislature theory. I share Rick Hasen’s view that this argument will not succeed under Moore v. Harper. While I’m not an expert in this legal area, the majority opinion appears persuasive and, at a minimum, firmly grounded in judicial reasoning.
Are there any other options left for Virginia’s Democrats? I previously thought not, but a theory has started circulating.
The New York Times outlines one final, desperate option:
A key element of the plan would involve Democrats in Richmond lowering the mandatory retirement age for the state Supreme Court justices, an idea that began circulating among state lawmakers and members of Congress after a Friday-night column proposing a version of the concept appeared in The Downballot, a progressive newsletter.
Ms. Spanberger would need to approve any legislation that reduces the judicial retirement age. She has not been briefed on the proposal, nor on the people involved in the discussion, according to those familiar with the matter. Her spokesperson, Libby Wiet, declined to comment.
The first step, as discussed during the delegation’s call, would be to rely on a January ruling by a circuit court judge in Tazewell County, Virginia, which held that the 2026 effort to redraw the maps was invalid because county officials did not post notice of it at courthouses and other public venues three months before a general election.
Democrats would aim to use that ruling to challenge the earlier constitutional amendment that created the state’s independent redistricting commission by arguing that notice was not posted in courthouses statewide at the time. That would grant the legislature the authority to enact a map of its choosing.
To move forward, the General Assembly — which is controlled by Democrats in both chambers — would lower the mandatory retirement age for Virginia’s Supreme Court from 75 to 54, the age of the youngest current justice, or even younger. Virginia judges are appointed by the General Assembly, where Democrats hold majorities, enabling them to fill vacancies with sympathetic Democratic lawyers.
In other words, the plan would be to “retire” all the justices in the majority, install allies on the bench, have the court invalidate the independent redistricting commission for failure to post notice, and then enact a new map. And all of this could be completed before the August primary. Plain and simple, right?
Fortunately, several Democrats publicly spoke out against this plan. At least one Democrat has publicly endorsed the approach:
Representative Suhas Subramanyam, a Democrat representing Loudoun County, Virginia, told reporters that he supported doing whatever it takes to safeguard the map voters approved in last month’s referendum — including removing the state’s Supreme Court justices.
“Everyone has to have a strong stomach right now; this is a complete disaster waiting to happen if people are timid,” said Subramanyam, who participated in the Saturday call. “We have Republican states flouting their constitutions and disrupting early voting, and outright ignoring their Supreme Courts. We know from that that Republicans would explore every possible option to push this forward.”
Here is the detailed proposal from The Down Ballot substack.
Article VI, Section 9, of the Virginia Constitution grants the legislature unlimited authority to set the retirement age for judges. It states, “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 fixes 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 figure is arbitrary. States across the country with comparable laws set retirement ages over a wide range. Virginia lawmakers could simply lower theirs. Set it at 54 for Supreme Court justices—the age of the youngest justice, Stephen McCullough, who joined the majority opinion—and have it take effect immediately. . . .
Then, after the bill passes, the entire court would retire. A new court would be appointed to rehear the case and could issue a different ruling.
Democrats may prefer other remedies, but if they want the will of the voters to be honored before the November elections, there are almost no viable alternatives—and none with as great a chance of success as this one.
The brilliance of the plan lies in the ability to remove judges when they rule against your preferred outcome. I know there has been debate about whether a federal judge can be impeached for a court decision, but in this scenario, judges would effectively be ousted through lowering the retirement age to 54. By way of context, Justice Ginsburg was appointed to the Supreme Court at age 60, and Justice Holmes at 61.
We often discuss constitutional hardball. This would be murderball. In light of all this pressure, I must still acknowledge Justice Arthur Kelsey, who wrote the majority opinion. My colleague Rob Luther, a professor at Scalia Law, offered these reflections:
I think Justice Arthur Kelsey of the Virginia Supreme Court is the clear winner of “Judge of the Week” this week. He penned the ruling in the Virginia redistricting case despite facing reappointment by a Democratic-controlled General Assembly in January. He is 64, yet the mandatory retirement age for Virginia judges is 73. Kelsey is generally considered conservative, but if he had voted with the Democrats, he likely would have been reappointed. Many would have tried to protect 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 harder for Article III judges — but this is as clear an instance as I could imagine.
Indeed, this is an act of judicial courage. He will probably lose his seat, even if the retirement age remains unchanged.
