“A Supreme Court that welcomes a new justice every two years, and turns over entirely over the course of every 18 years, could wreak havoc on doctrinal stability.” — Suzanna Sherry and Christopher Sundby, Vanderbilt Law School.
If you think Supreme Court nominations are political circuses now, just wait until justices have term limits.
Not that I think this will happen.
President Biden, anxious to revive a campaign plagued by calls for him to step down due to age-related problems, has announced he will push for term limits, specifically 18-year staggered terms, on the nation’s highest court, as well as enforceable ethics reform for justices.
It feels like a political desperation shot. It’s also the next phase of the age-old battle to make the judicial branch of government a little less frustratingly independent — frustrating, that is, for those who don’t like its decisions.
It’s a frustration the nation’s founders saw as vital.
Tinhorn dictators control their courts to ensure that friends are protected and enemies punished. The founders understood this. While the United States is far from that kind of system, one of the keys to freedom and liberty is an independent judiciary, and a key to independence for the highest court is a lifetime appointment.
Term limits would mean some justices might need to look for work again. Suddenly, outside pressures intrude.
The independence of a lifetime appointment is a reason why Justice Amy Coney Barrett, a Trump appointee, has felt free to join the liberal minority in some recent high-profile cases. It allows her and her fellow justices to follow the law without direct political repercussion. It’s why Republican-nominated Chief Justice John G. Roberts felt free to uphold Obamacare. It’s also why presidents have been routinely upset by appointments who didn’t rule as expected.
And it’s vitally important to the republic.
The law and the merits of each case, not politics, should determine outcomes. Naturally, each justice enters the job with his or her own views on important matters, which ultimately brings politics into the appointment process.
And that appointment process would be exacerbated by staggered term limits.
Each presidential term would allow for at least two new appointments to the Supreme Court. Why should we believe the process would become any less political, grueling or contentious than it has been in recent years? The only change is it would be continually a part of political life in Washington.
If this happens, expect the court to spend considerable time with less than nine justices, as the process plays out, especially if the White House and the Senate are controlled by opposite parties.
In addition, it could take only one two-term president to completely change the ideological orientation of the court, and one more to turn it back.
Arguing against this, Sherry and Sundby of the Vanderbilt Law School said, “Under the current constitutionally mandated system of life tenure, the court changes slowly … A constantly changing court, on the other hand, might make sudden and radical changes in doctrine.”
It also probably wouldn’t be the last word on court independence. One sure bet in life is that presidents and special interests on all sides would continue to be upset by judicial decisions.
Appellate Judge J. Harvie Wilkinson III wrote in a Washington Post op-ed, “Proponents of changing that (lifetime service) rule may take satisfaction in humbling the justices ever so slightly … (but) it will invite further and more dangerous tinkering and alteration of the court’s structure in years to come.”
My prediction is the nation won’t see either term limits for justices or a new code of ethics, even if Biden were re-elected. Article III of the Constitution guarantees that justices will serve “during good behavior,” which has been interpreted for more than two centuries as meaning for life.
Biden’s plan, then, would require a constitutional amendment, an unbelievably heavy lift in today’s partisan climate.
Imposing a code of conduct would open a huge constitutional debate on the limits of one branch of government to impose itself on another. Last year, Justice Samuel Alito told the Wall Street Journal he thinks such a thing would be unconstitutional.
“I know this is a controversial view, but I’m willing to say it,” he said. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
Recent opinion polls show that Americans are unhappy with the Supreme Court. One by the Marquette Law School in February found only 40% approving, compared to 66% in 2020.
That makes court reform a potentially popular election platform right now. It does not, however, make it right.