Talking Points Memo founder Josh Marshall raised a constitutional question Monday about a proposed lame-duck Supreme Court maneuver: if Donald Trump signs a commission for a justice before any seat opens, could that justice be seated years after Trump leaves office?
The debate began last week, when SCOTUSblog editor and ABC News contributor Sarah Isgur floated the maneuver after Democrats won control of the Senate.
“Alito won’t retire in the lame duck and he doesn’t need to. Trump can nominate someone to the Supreme Court and the senate can confirm without a vacancy. Then Trump can wait to sign the commission any time in the next two years,” Isgur wrote on X on Nov. 5.
The idea drew pushback across the spectrum, including from conservative legal commentator Ed Whelan. Marshall initially replied that “this is not how it works.”
On Monday, Isgur pointed to a 2022 Office of Legal Counsel opinion concluding that President Joe Biden could sign Ketanji Brown Jackson’s commission before Justice Stephen Breyer’s retirement took effect. Jackson was sworn in the day Breyer stepped down. Isgur argued that under Marbury v. Madison, the commission would have been effective even if Biden had been replaced in the meantime.
Marshall likened the theory to the lack of any mechanism stopping a vice president from refusing to accept election certifications, then raised a further question.
“Does invoking Marbury not mean that these Trump commissions wld extend even past Trump’s presidency?” he wrote.
Under that reading, a justice confirmed now could be held in reserve until a vacancy arose, even under a future president.
Marbury, decided in 1803, held that William Marbury had a legal right to a signed but undelivered commission as a justice of the peace.
Justice Samuel Alito has said he intends to stay through the current term, and Republicans have weighed the risks of lame-duck vacancies in recent weeks. Democrats take control of the Senate in January.
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