Valrifell wrote:
I was catching up on the thread so I don't know if this was addressed, but ex post facto (retroactive) laws are unconstitutional. See Article 1 Section 9 and Article 1 Section 10 for the ban on retroactive laws for federal and state governments respectively.
So you could pass a new Judiciary Act downsizing the court and say "Kavanaugh and Gorsuch aren't justices anymore hah ha! We win!" but then what would happen is that absolutely no one would buy that since the constitutional law is clear. There were 9 seats at appointment, not 7, you can't retroactively say there were only 7 relevant seats and that the two latest appointments are illegitimate, that's not how that works.
You'd cause a constitutional crisis is what you'd do.
That's pretty strong I think.
Added to which, the Constitution provides no way for Congress to remove judges other than the impeachment process. Removing them by a retroactive law declaring them to have been never duly appointed, would achieve the same as impeachment+removal but without the 2/3 supermajority required in the Senate. If such an easy way to remove justices was envisioned then it would surely have been mentioned. And surely have been used, too.
In 1801 the Court was reduced from 6 to 5 but the legislation stipulated that it be done by 'attrition' and after an election the law was changed back without any of the seats becoming vacant. The Act did have effect of allowing President Adams to appoint 16 "midnight judges" to new seats on the circuit courts. It was pretty much a constitutional crisis, but leading to the Marbury v. Madison ruling it shows that crises are not always bad!
