Nothing beats having to create an Excel spreadsheet and check the actuarial tables to examine a bedrock constitutional principle. But the proposal for Supreme Court term limits made me start running the numbers when it recently got a boost from the redoubtable Norm Ornstein.
As the days left in the Obama Administration dwindle, legal eagles’ thoughts turn to the Supreme Court, the one, true lasting legacy of any President. Some minds have wandered to the tenure of the petite and fierce Ruth Bader Ginsburg, treating us to their somewhat distasteful calls for her to retire soon, giving Obama a chance to appoint her successor. Their unspoken fear is that the 81-year-old jurist might die in office during an upcoming Republican Administration. Ah, actuarial tables.
The less morbid, however, have begun reviving the prospect of term limits for Supreme Court Justices. The proposals vary, but the best loved seems to be for staggered 18-year terms. At the end of the term, the Justice would take senior status. The nine junior Justices would comprise the “deciding” portion of the Court. Each President would get two appointments every term. You do the math.
The Founders did not have Excel. But they were no strangers to using terms in office and ratios to shape the democratic process. Yet when it came to judges, they were straightforward: lifetime tenure.
While we’ve fiddled with the number of terms a President can serve, how Senators are elected, and even gave women the vote, lifetime tenure for judges has stayed untouched. It feels foundational, the very thing that makes judicial independence possible. It should take something major to upend this core underpinning of our judiciary.
Writing in The Atlantic last month, Ornstein made the case for the 18-year term proposal. It “would open opportunities for men and women in their 60s, given modern life expectancies, and not just those in their 40s. It would to some degree lower the temperature on confirmation battles by making the stakes a bit lower. And it would mean a Court that more accurately reflects the changes and judgments of the society.”
Let’s take the arguments in order.
It is certainly a nice idea to give people in their 60s more job opportunities. But I’m not sure upending a Constitutional principle to open up nine potential jobs is really the most efficient approach to the unemployment rate among baby boomers.
When it comes to blunting bloody confirmation battles, Ornstein damns the proposal with faint benefits: “make the stakes a bit lower.” I don’t think it will do even that much.
Here’s a D.C. truism: never underestimate the skills of America’s political brawl impresarios. People are going to figure out pretty quickly that each nomination counts as much as ever. Sure, they’ll only be fighting over giving each Justice 18 years of power rather than today’s 26-year average. But given how hard people fight over two-year House terms, I just don’t think term limits will make a difference in that respect. Meanwhile, the prospect of another bite at the apple in two years is not a salve; it’s a threat. So were the proposal implemented, we would get the special, added bonus of a nominations savaged in regular two-year intervals.
Ornstein’s final point is the most telling. Longer lifespans have meant that Justices now serve longer terms and grow more distant over that time from the real world than when the Constitution was adopted. Sure, the Founders plumped for lifetime tenure, but back then low life expectancy was an insurance policy against bad mistakes. After all, any 18th and 19th century appointees would probably kick the bucket pretty soon, so the Court was guaranteed a regular infusion of fresh blood. (This may not be entirely right from an Excel standpoint, but I won’t bore you with all the details.)
Still, people think the Court is out-of-tune with contemporary society and too concerned with what 18th century political writers thought. (Those robes really don’t help send a very with it message either).
Eighteen-year terms would tie Justices a bit more closely to prevailing political and social winds. And according to term limit proponents that is a good thing.
Yet if one were to try to diagnose what currently ails the Court, the more common complaint is the opposite. It’s not that the Court is out of touch with the judgments of society, but that it is too attuned with current political trends. The Court has grown polarized—the Justices too aligned with political parties. In fact, the Court is just as polarized as the rest of us, as this widely-cited Pew study found.
One research paper published last month, argues “[f]or the first time ever, the Supreme Court is divided along strictly partisan lines.” According to the paper’s authors, “with one ambiguous exception, today’s Court almost surely is the first in which every one of the Court’s Democratic appointees is to the left of every one of its Republican appointees.”
The tarring of the Court as a partisan institution is, of course, partially the result of some of its more controversial recent decisions. But it’s also just a fact that the Court is getting lumped in with all government institutions— hopelessly tainted with politics.
So any proposal that aims to tie Supreme Court jurists more closely to the contemporary ebbs and flows of political thought should probably be greeted with some skepticism.
The roots of the Court’s polarization are far deeper than the Constitution’s guarantee of a judgeship for life. Justices don’t grow polarized because of lifetime tenure.
Term limit proposals tend to have support because they seem so sensible. Lifetime tenure just doesn’t sit right with most people, who suspect that it induces complacency mixed with arrogance. They might be right. But the arguments for eliminating such a core constitutional principle just don’t feel imperative, yet. So back to the Excel spreadsheets.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
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