(1) It's too soon to predict the scope of the immunity that will come from the SCOTUS' recent decision. At a bare minimum, we should allow one case — the pending one — to reach judgment, which probably will require the trial court and the court of appeals to evaluate how that decision applies in discrete factual and legal settings. Until we know where this decision is going to take us, and how much of Trump's allegedly criminal conduct in office is subject to absolute immunity, or no immunity, or something in between, we're reacting to suppositions and guesswork that may turn out to be inaccurate. (Indeed, it can't ALL be accurate, since there's already such wide variance in the current predictions.)
(2) I respect and admire Prof. Amar, but with due respect his proposal is disingenuous. A senior-status judge isn't forced to take that status. And claiming that a senior-status judge is equivalent to a sitting judge is a joke even at the court of appeals level. This might become a lie agreed upon, but it would still be a lie even if passed into law by Congress.
(3) SCOTUS Justices are currently already subject to a binding set of judicial ethics, but unlike any other judges, they individually hold themselves accountable. You can't change that without setting up a higher court to review decisions of SCOTUS Justices, in which case the Supreme Court would no longer be supreme. Again, pretending that this can be done without a constitutional amendment is disingenuous and unpersuasive.
On point (2), remember that the Legacy Justices are not affected under Amar's version of the proposal. This would apply only to new justices.
Any new justice would take the position knowing it would be subject to an 18-year limit. If they don't want to be a justice for a mere 18 years, they can decline the nomination. Senators could ask them to promise at their confirmation hearings that they will comply with the 18-year limit—and perhaps impeach them if they renege. So the argument might be that the statute is merely establishing a norm—and as such, no constitutional amendment is required.
But if Congress says, "As a condition for being on the Supreme Court, you have to consent in advance to being removed after 18 years," that's not "hold[ing] office during good behavior" — it's holding office pursuant to an extraconstitutional agreement, imposed upon one and all by statute, for 18 years. More smoke and mirrors, still unconstitutional. I'm not a fan of side deals between nominees and senators where we pretend the Constitution doesn't say what it says.
If you want to change "hold[ing] office during good behavior" to "hold[ing] office during good behavior for up to, but no more than, 18 years," then get a constitutional amendment to say so. Likewise, if you want a Supreme Court of Ethics to sit judgment upon the fitness of the Justices, in general or in any given case, then amend the Constitution to have an "almost Supreme Court" and its new bosses. I think both are terrible ideas as a matter of policy, but regardless, as a matter of constitutional law, neither of those proposals, if enacted by Congress and signed by the POTUS (or over his veto), can be squared with what's now in the Constitution.
P.S. As I say in my post, I’m fine with doing this by amendment, which would be the safest and most prudent path. I’m just explaining Amar’s argument as to why HE thinks it can be done by statute. Speaking for myself, I say let’s amend.
I wonder if any of those Senators who support or are open to SCOTUS (or Article III generally) term limits would support a constitutional amendment that pairs such limits with congressional term limits.
While I'm not quite as sanguine as you about the efficacy of the presidential criminal immunity decision, you make a good point that we should see how it plays out before condemning it to a constitutional amendment. As for the others, I concur, whether I wish it were otherwise.
Color me naive, but I think we need to stop categorizing these changes as implausible right of the bat, and simply start stating the merits. The unlikelihood of getting them done ought not to be a conversation starter, as true as it might be at this point in time. I believe these categorizing to be self-defeating, once again, regardless of whether it’s true or not. Bc at the end that doesn’t matter. I think that what matters is the discussion on the merits, the importance and salience of the issues. If we find that these things are salient, then it’s upon ALL of us to push them forward, to make them happen. And these are things definitely important.
You'll note that I discussed the merits of these proposals before getting to the likelihood of their being enacted (discussed after the line indicating a section break). But I do feel a duty to give my thoughts on whether they'll become reality—after describing the proposals and offering my own normative take on each.
That's a highly insightful post. I agree that categorizing is practically useless. Getting them done has never been an issue because while striving for completion is the same as while striving for perfection. Striving is to achieve the closest that we can become spiritually, mentally and physically. To me, that's the American way.🇺🇸
The conversation is good, and should continue, whether or not all, some, or none of the proposals are enacted, because it has been a very long time since any real changes were made. Discussing it is a good place to start. I would also add that increasing the court size is reasonable. For good or ill, our society has become more litigious. I would say it’s neither good or bad because it’s an effect of our society becoming more complex overall, especially because of technology and issues like globalization. More justices at all levels are needed as they are all overwhelmed and can’t handle the caseload coming at them.
It's hard to consider any of these proposals without reference to current politics. And of course, none are likely to get serious consideration, regardless of the outcome of this year's election. Rather than address the current political implications, I'll try to think through the structural issues as if we were designing the constitutional order from scratch.
1. A president shouldn't have blanket immunity from prosecution. However, a president also shouldn't be subject to prosecution by any prosecutor, anywhere, for any conduct that might arguably be a crime in some jurisdiction. (Of course, no one else should be subject to such prosecution, either.) And the dividing line shouldn't be decided by the Supreme Court, who necessarily make up the doctrine more or less from whole cloth. Unfortunately, I don't have any concrete ideas myself, so I'll punt.
2. Intuitively, a scheme of rotating 18 year terms for justices seems reasonable. It might reduce the partisan stakes of appointments. But then again, it might not. If the Senate is not controlled by the President's party, the senators might have more incentive to delay approvals for nominees than they now have. Term limits would reduce the risk of a justice clearly in dotage staying on the court. But I don't think we've had that problem yet, so it's not an issue that clearly needs a solution.
As far as I can tell, Professor Amar doesn't directly address the case where a justice resigns or dies before the end of his term, unless his idea is to use emeritus justices for the remainder of the unexpired term. In that case, who would choose the replacement? Would there be a rule? Would each case have a different replacement? Or, would the current president nominate a replacement justice to fill the remainder of the unexpired term?
3. In an ideal world, there would be binding ethical codes for all public officials. In an ideal world, we wouldn't have officials who needed to be told how to behave. Since we don't live in an ideal world, I suppose we need some sort of enforceable ethical rules, even for the Supreme Court justices. I don't hold much hope for anything meaningful, given that the Supreme Court could veto anything passed by Congress for violating separation of powers. And, with Congress as an example, I expect anything the justices came up with would be so weak as to be laughable.
My preference, personally, would be a rule that, if a seat is empty for any reason, the most recent emeritus takes it by default. If they're not available or need to recuse, or if somehow there is more than one open seat, it just goes up the chain in that order. I don't think there's a way to completely eliminate the incentive to delay, but this would at least mean that an attempt to "steal" a seat from a justice more favorable to a given president would immediately backfire by extending their term, and it means that appointment delays don't necessarily cripple the Court.
Ultimately it's hard to fix the delay problem without just cutting the Senate out entirely. Maybe you could cut down on the issue by having Presidents submit lists of candidates, with the Senate choosing among them (or rejecting all), in order to make it more difficult for an obstructionist faction to coordinate, but it is genuinely a difficult problem of organizational design.
One additional reform/argument for term limits: if we had Senior Status Justices, they could take on some new roles: (1) filling in when there are recusals; (2) perhaps handling individual jurisdiction caters; and (3) serving on an ethics committee for the court (and perhaps the whole federal judiciary). If there was not enough justices to fill those roles, senior status appellate judges could fill in by designation.
These additional duties would have several advantages:
---The possibility of appellate judges joining with Supreme Court Justices would send a subtle message to the Justices that they are not God's Gift to Humanity. A little humility would help.
---The possibility of having Senior Justices/Judges filling in where there are recusals would allow for more rigorous ethics standards, with mandatory recusals, because there a recusal would not lead to an 8 member Court. And, again, Justice being treated like every other federal judge would send the humility message. Even without term limits, and the resulting senior Justices, we could get these benefits by having senior appellate judges in these roles.
I would also tie funding for Supreme Court clerks to the number of merits decisions. That is, in 2027, if the Justices are doing 60 merits decisions, they would each get two clerks; if they are doing 70, they would get each get three clerks; if they are doing 85, they would each get the current number of four clerks. The numbers are of course negotiable, but they would signal that the Justices need to do their jobs. And more decisions would mean less time for the needlessly long opinions and perhaps reduce the number of concurring and dissenting opinions.
On your final point, I think another underused power of Congress is that of the purse. That's also right there in the constitutional text. Issues occasionally arise over unconstitutional conditions, but not often.
Term limits is a terrific idea (and for more than the Court!) but I think the phase in is tricky - if you exempt current justices, then it will be hard to get an even application of the term limits (a really nice feature of the 18 year term limits is you can have a justice rolling off every 2 years). And doing it by constitutional amendment seems the better way to do it as well.
For my dream list, I'd add a requirement that nominees to the SCT have at least X years (I'd say 10) as a lower court (federal or state) judge. (I might be willing to substitute 10 years as an active lawyer in private practice.) Having an appreciation for how SCT opinions play out in the real world would, I think, lead to clearer opinions in the future.
And for the "no way it will ever happen" category, I'd just have the justices selected by random selection from among sitting state Supreme Court justices 60 years old and under and with a minimum of 10 years judicial service at any level. That would give us a court more attuned to federalism, among other things.
Thank you for providing the link to Fix the Court. I find myself drawn most to Sen. Josh Hawley's argument: "One way to foster a more circumspect attitude toward the Court’s role is to change the justices’ incentives in deciding cases. If they know they will not remain on the Court for an extended period of time, and that the rules they craft will shortly be applied by someone else, they may be far less likely to charge so eagerly into constitutional politics [...] Justices would thus acquire incentives for caution and moderation rather than judicial aggrandizement."
Obviously peoples' opinion on this can change as different political parties see their preferred ideologies supported to a greater or lesser extent by the highest court in the land. For instance, this quote from Sen. Hawley is from 2012, and I would be astonished if he still held this opinion now. But I think that's more argument to consider term limits, not less.
I understand not wanting to seem like the goal is to kick people off the Court, but I don't see a "legacy justice" system working. How would it transition to the emeritus framework, when a key part of that framework is setting the appointments at regular, staggered intervals? If there are serious worries about a partisan takeover, just put the first new-style seat after the next Presidential election (as of the adoption of the measure).
Separately, it's probably a good idea to put the appointments in odd years, in order to minimize the direct salience of elections. And I'd add that the most important duty of an emeritus justice would likely be to substitute in cases of recusal.
As to immunity, Nixon v Fitzgerald was wrongly decided.
Senator Schumer introduced his response to the Trump immunity case, the "No Kings Act" (catchy title). It may not be constitutional, as the Trump case interpreted the Constitution. A statute may not be able to change that interpretation. But it also states that the Supreme Court has no jurisdiction to interpret or hear any challenges to the Act. Article III does provide that the Supreme Court has such jurisdiction as Congress permits. Perhaps this is a new trend in legislation affecting the Supreme Court--withdrawal of jurisdiction over specific matters and statutes. Is that a violation of the separation of powers? The text of Article III says no, but this Court has a way of evading the text of the Constitution when it serves its interests.
I've long been puzzled as to why Congress does not exercise its power to delineate (or some say "strip") jurisdiction more frequently. It's right there in the text: SCOTUS shall have jurisdiction "with such Exceptions, and under such Regulations as the Congress shall make." And of course the lower courts are creatures of statute, not even directly established by the Constitution.
(There was that recent controversy over the Mountain Valley Pipeline, where Congress provided that challenges had to go to the D.C. Circuit. But I feel it's pretty uncommon.)
Biden should use his newfound power to remove Alito, Thomas and Roberts for Crimes against the Constitution and the Rule of Law and call it an Official Act.
It wouldn't be an official act under core constitutional powers. On the contrary, it would be an "official act" that is blatantly unconstitutional. No immunity for that according to Trump vs. US. AFAIK.
Also, if we are going to change how justices are appointed let's take advantage of hundreds of years of political science research into various mechanisms and incentives or ancient wisdom not just do something simple and not that likely to deal with deep issues.
For instance, let's tackle confirmation and the other incentive problems all in one go and do something interesting like maybe have the senate and the president appoint people to some panel which then must choose the next justice by some super majority. Maybe do what the Catholic church does and literally lock them away somewhere until they reach a compromise.
If you want to encourage broad consensus canidates or have other nice property you can design various voting mechanisms for the committee that encourage such outcomes. I don't know the best design but there are all sorts of things you can do such as randomly removing members of the panel over time but make compromises binding to discourage holdouts from demanding extreme choices.
A constitutional amendment to overturn Trump v. U.S. would have to be either incoherent or else a raw declaration of Congressional supremacy; if the President is acting within the scope of his lawfully-assigned authority, his actions are per se not illegal (so it's vacuous to describe it as such), whereas if Congress can willy-nilly cabin the scope of Presidential authority through the criminal law, than the separation of powers essentially ceases to exist.
As a more practical matter, the proposed amendment follows a trend of proposed policies whose success would render them completely unnecessary--if you have the political consensus to ratify such an amendment, you also have the political consensus to just revive the impeachment procedure as a meaningful check on Presidential abuses.
The proposed so called reforms should die a death in Congress for being unconstitutional as a violation of the separation of powers clause of the Constitution in the same way that FDR's proposed so called reforms died.
This is an ad hominem argument, a well known form of fallacy. (c.f. https://en.wikipedia.org/wiki/Ad_hominem) Are we supposed to find this convincing because of your tone?
I'm against all three proposals.
(1) It's too soon to predict the scope of the immunity that will come from the SCOTUS' recent decision. At a bare minimum, we should allow one case — the pending one — to reach judgment, which probably will require the trial court and the court of appeals to evaluate how that decision applies in discrete factual and legal settings. Until we know where this decision is going to take us, and how much of Trump's allegedly criminal conduct in office is subject to absolute immunity, or no immunity, or something in between, we're reacting to suppositions and guesswork that may turn out to be inaccurate. (Indeed, it can't ALL be accurate, since there's already such wide variance in the current predictions.)
(2) I respect and admire Prof. Amar, but with due respect his proposal is disingenuous. A senior-status judge isn't forced to take that status. And claiming that a senior-status judge is equivalent to a sitting judge is a joke even at the court of appeals level. This might become a lie agreed upon, but it would still be a lie even if passed into law by Congress.
(3) SCOTUS Justices are currently already subject to a binding set of judicial ethics, but unlike any other judges, they individually hold themselves accountable. You can't change that without setting up a higher court to review decisions of SCOTUS Justices, in which case the Supreme Court would no longer be supreme. Again, pretending that this can be done without a constitutional amendment is disingenuous and unpersuasive.
On point (2), remember that the Legacy Justices are not affected under Amar's version of the proposal. This would apply only to new justices.
Any new justice would take the position knowing it would be subject to an 18-year limit. If they don't want to be a justice for a mere 18 years, they can decline the nomination. Senators could ask them to promise at their confirmation hearings that they will comply with the 18-year limit—and perhaps impeach them if they renege. So the argument might be that the statute is merely establishing a norm—and as such, no constitutional amendment is required.
I see the argument, Mr. Lat.
But if Congress says, "As a condition for being on the Supreme Court, you have to consent in advance to being removed after 18 years," that's not "hold[ing] office during good behavior" — it's holding office pursuant to an extraconstitutional agreement, imposed upon one and all by statute, for 18 years. More smoke and mirrors, still unconstitutional. I'm not a fan of side deals between nominees and senators where we pretend the Constitution doesn't say what it says.
If you want to change "hold[ing] office during good behavior" to "hold[ing] office during good behavior for up to, but no more than, 18 years," then get a constitutional amendment to say so. Likewise, if you want a Supreme Court of Ethics to sit judgment upon the fitness of the Justices, in general or in any given case, then amend the Constitution to have an "almost Supreme Court" and its new bosses. I think both are terrible ideas as a matter of policy, but regardless, as a matter of constitutional law, neither of those proposals, if enacted by Congress and signed by the POTUS (or over his veto), can be squared with what's now in the Constitution.
P.S. As I say in my post, I’m fine with doing this by amendment, which would be the safest and most prudent path. I’m just explaining Amar’s argument as to why HE thinks it can be done by statute. Speaking for myself, I say let’s amend.
I wonder if any of those Senators who support or are open to SCOTUS (or Article III generally) term limits would support a constitutional amendment that pairs such limits with congressional term limits.
I highly doubt it.
Prof. Amar is a very smart fellow. One of the things I like about him is that he's never trenchant.
While I'm not quite as sanguine as you about the efficacy of the presidential criminal immunity decision, you make a good point that we should see how it plays out before condemning it to a constitutional amendment. As for the others, I concur, whether I wish it were otherwise.
Bravo.
Color me naive, but I think we need to stop categorizing these changes as implausible right of the bat, and simply start stating the merits. The unlikelihood of getting them done ought not to be a conversation starter, as true as it might be at this point in time. I believe these categorizing to be self-defeating, once again, regardless of whether it’s true or not. Bc at the end that doesn’t matter. I think that what matters is the discussion on the merits, the importance and salience of the issues. If we find that these things are salient, then it’s upon ALL of us to push them forward, to make them happen. And these are things definitely important.
You'll note that I discussed the merits of these proposals before getting to the likelihood of their being enacted (discussed after the line indicating a section break). But I do feel a duty to give my thoughts on whether they'll become reality—after describing the proposals and offering my own normative take on each.
That's a highly insightful post. I agree that categorizing is practically useless. Getting them done has never been an issue because while striving for completion is the same as while striving for perfection. Striving is to achieve the closest that we can become spiritually, mentally and physically. To me, that's the American way.🇺🇸
Its definitely time for meaningful change.
The conversation is good, and should continue, whether or not all, some, or none of the proposals are enacted, because it has been a very long time since any real changes were made. Discussing it is a good place to start. I would also add that increasing the court size is reasonable. For good or ill, our society has become more litigious. I would say it’s neither good or bad because it’s an effect of our society becoming more complex overall, especially because of technology and issues like globalization. More justices at all levels are needed as they are all overwhelmed and can’t handle the caseload coming at them.
It's hard to consider any of these proposals without reference to current politics. And of course, none are likely to get serious consideration, regardless of the outcome of this year's election. Rather than address the current political implications, I'll try to think through the structural issues as if we were designing the constitutional order from scratch.
1. A president shouldn't have blanket immunity from prosecution. However, a president also shouldn't be subject to prosecution by any prosecutor, anywhere, for any conduct that might arguably be a crime in some jurisdiction. (Of course, no one else should be subject to such prosecution, either.) And the dividing line shouldn't be decided by the Supreme Court, who necessarily make up the doctrine more or less from whole cloth. Unfortunately, I don't have any concrete ideas myself, so I'll punt.
2. Intuitively, a scheme of rotating 18 year terms for justices seems reasonable. It might reduce the partisan stakes of appointments. But then again, it might not. If the Senate is not controlled by the President's party, the senators might have more incentive to delay approvals for nominees than they now have. Term limits would reduce the risk of a justice clearly in dotage staying on the court. But I don't think we've had that problem yet, so it's not an issue that clearly needs a solution.
As far as I can tell, Professor Amar doesn't directly address the case where a justice resigns or dies before the end of his term, unless his idea is to use emeritus justices for the remainder of the unexpired term. In that case, who would choose the replacement? Would there be a rule? Would each case have a different replacement? Or, would the current president nominate a replacement justice to fill the remainder of the unexpired term?
3. In an ideal world, there would be binding ethical codes for all public officials. In an ideal world, we wouldn't have officials who needed to be told how to behave. Since we don't live in an ideal world, I suppose we need some sort of enforceable ethical rules, even for the Supreme Court justices. I don't hold much hope for anything meaningful, given that the Supreme Court could veto anything passed by Congress for violating separation of powers. And, with Congress as an example, I expect anything the justices came up with would be so weak as to be laughable.
Re: 2 -
My preference, personally, would be a rule that, if a seat is empty for any reason, the most recent emeritus takes it by default. If they're not available or need to recuse, or if somehow there is more than one open seat, it just goes up the chain in that order. I don't think there's a way to completely eliminate the incentive to delay, but this would at least mean that an attempt to "steal" a seat from a justice more favorable to a given president would immediately backfire by extending their term, and it means that appointment delays don't necessarily cripple the Court.
Ultimately it's hard to fix the delay problem without just cutting the Senate out entirely. Maybe you could cut down on the issue by having Presidents submit lists of candidates, with the Senate choosing among them (or rejecting all), in order to make it more difficult for an obstructionist faction to coordinate, but it is genuinely a difficult problem of organizational design.
I support all these reforms.
One additional reform/argument for term limits: if we had Senior Status Justices, they could take on some new roles: (1) filling in when there are recusals; (2) perhaps handling individual jurisdiction caters; and (3) serving on an ethics committee for the court (and perhaps the whole federal judiciary). If there was not enough justices to fill those roles, senior status appellate judges could fill in by designation.
These additional duties would have several advantages:
---The possibility of appellate judges joining with Supreme Court Justices would send a subtle message to the Justices that they are not God's Gift to Humanity. A little humility would help.
---The possibility of having Senior Justices/Judges filling in where there are recusals would allow for more rigorous ethics standards, with mandatory recusals, because there a recusal would not lead to an 8 member Court. And, again, Justice being treated like every other federal judge would send the humility message. Even without term limits, and the resulting senior Justices, we could get these benefits by having senior appellate judges in these roles.
I would also tie funding for Supreme Court clerks to the number of merits decisions. That is, in 2027, if the Justices are doing 60 merits decisions, they would each get two clerks; if they are doing 70, they would get each get three clerks; if they are doing 85, they would each get the current number of four clerks. The numbers are of course negotiable, but they would signal that the Justices need to do their jobs. And more decisions would mean less time for the needlessly long opinions and perhaps reduce the number of concurring and dissenting opinions.
On your final point, I think another underused power of Congress is that of the purse. That's also right there in the constitutional text. Issues occasionally arise over unconstitutional conditions, but not often.
Term limits is a terrific idea (and for more than the Court!) but I think the phase in is tricky - if you exempt current justices, then it will be hard to get an even application of the term limits (a really nice feature of the 18 year term limits is you can have a justice rolling off every 2 years). And doing it by constitutional amendment seems the better way to do it as well.
For my dream list, I'd add a requirement that nominees to the SCT have at least X years (I'd say 10) as a lower court (federal or state) judge. (I might be willing to substitute 10 years as an active lawyer in private practice.) Having an appreciation for how SCT opinions play out in the real world would, I think, lead to clearer opinions in the future.
And for the "no way it will ever happen" category, I'd just have the justices selected by random selection from among sitting state Supreme Court justices 60 years old and under and with a minimum of 10 years judicial service at any level. That would give us a court more attuned to federalism, among other things.
Yes to term limits, and yes to an ethics policy with more accountability.
Thank you for providing the link to Fix the Court. I find myself drawn most to Sen. Josh Hawley's argument: "One way to foster a more circumspect attitude toward the Court’s role is to change the justices’ incentives in deciding cases. If they know they will not remain on the Court for an extended period of time, and that the rules they craft will shortly be applied by someone else, they may be far less likely to charge so eagerly into constitutional politics [...] Justices would thus acquire incentives for caution and moderation rather than judicial aggrandizement."
Obviously peoples' opinion on this can change as different political parties see their preferred ideologies supported to a greater or lesser extent by the highest court in the land. For instance, this quote from Sen. Hawley is from 2012, and I would be astonished if he still held this opinion now. But I think that's more argument to consider term limits, not less.
I understand not wanting to seem like the goal is to kick people off the Court, but I don't see a "legacy justice" system working. How would it transition to the emeritus framework, when a key part of that framework is setting the appointments at regular, staggered intervals? If there are serious worries about a partisan takeover, just put the first new-style seat after the next Presidential election (as of the adoption of the measure).
Separately, it's probably a good idea to put the appointments in odd years, in order to minimize the direct salience of elections. And I'd add that the most important duty of an emeritus justice would likely be to substitute in cases of recusal.
As to immunity, Nixon v Fitzgerald was wrongly decided.
Senator Schumer introduced his response to the Trump immunity case, the "No Kings Act" (catchy title). It may not be constitutional, as the Trump case interpreted the Constitution. A statute may not be able to change that interpretation. But it also states that the Supreme Court has no jurisdiction to interpret or hear any challenges to the Act. Article III does provide that the Supreme Court has such jurisdiction as Congress permits. Perhaps this is a new trend in legislation affecting the Supreme Court--withdrawal of jurisdiction over specific matters and statutes. Is that a violation of the separation of powers? The text of Article III says no, but this Court has a way of evading the text of the Constitution when it serves its interests.
I've long been puzzled as to why Congress does not exercise its power to delineate (or some say "strip") jurisdiction more frequently. It's right there in the text: SCOTUS shall have jurisdiction "with such Exceptions, and under such Regulations as the Congress shall make." And of course the lower courts are creatures of statute, not even directly established by the Constitution.
(There was that recent controversy over the Mountain Valley Pipeline, where Congress provided that challenges had to go to the D.C. Circuit. But I feel it's pretty uncommon.)
Biden should use his newfound power to remove Alito, Thomas and Roberts for Crimes against the Constitution and the Rule of Law and call it an Official Act.
It wouldn't be an official act under core constitutional powers. On the contrary, it would be an "official act" that is blatantly unconstitutional. No immunity for that according to Trump vs. US. AFAIK.
Also, if we are going to change how justices are appointed let's take advantage of hundreds of years of political science research into various mechanisms and incentives or ancient wisdom not just do something simple and not that likely to deal with deep issues.
For instance, let's tackle confirmation and the other incentive problems all in one go and do something interesting like maybe have the senate and the president appoint people to some panel which then must choose the next justice by some super majority. Maybe do what the Catholic church does and literally lock them away somewhere until they reach a compromise.
If you want to encourage broad consensus canidates or have other nice property you can design various voting mechanisms for the committee that encourage such outcomes. I don't know the best design but there are all sorts of things you can do such as randomly removing members of the panel over time but make compromises binding to discourage holdouts from demanding extreme choices.
A constitutional amendment to overturn Trump v. U.S. would have to be either incoherent or else a raw declaration of Congressional supremacy; if the President is acting within the scope of his lawfully-assigned authority, his actions are per se not illegal (so it's vacuous to describe it as such), whereas if Congress can willy-nilly cabin the scope of Presidential authority through the criminal law, than the separation of powers essentially ceases to exist.
As a more practical matter, the proposed amendment follows a trend of proposed policies whose success would render them completely unnecessary--if you have the political consensus to ratify such an amendment, you also have the political consensus to just revive the impeachment procedure as a meaningful check on Presidential abuses.
The proposed so called reforms should die a death in Congress for being unconstitutional as a violation of the separation of powers clause of the Constitution in the same way that FDR's proposed so called reforms died.
Do we have to discuss seriously the partisan proposal of a senile jagoff? God blessed us with brain cells for a higher purpose.
This is an ad hominem argument, a well known form of fallacy. (c.f. https://en.wikipedia.org/wiki/Ad_hominem) Are we supposed to find this convincing because of your tone?