Experts tout proposals for Supreme Court term limits
on Aug 4, 2020 at 4:16 pm
Term limits for Supreme Court justices, once a fringe idea, have seemingly entered the political and academic mainstream. Recently, both the conservative Federalist Society and the liberal American Constitution Society have hosted events and published scholarship on the question. The Center for American Progress joined the conversation on Tuesday with a virtual discussion of recent term limit proposals, their constitutionality and what it would take to enact them.
Kicking off the webinar, CAP President and CEO Neera Tanden noted that the average length of Supreme Court terms is longer today than at any point in history. Term limits, she contended, with each president expecting a set number of nominations during a four-year term, would reduce the arbitrariness and polarization inherent in the nominations process – epitomized, in Tanden’s view, by Senate Republicans’ refusal to consider Judge Merrick Garland’s nomination after the death of Justice Antonin Scalia in 2016. Tanden introduced the event’s moderator, CAP Legal Progress Director Maggie Jo Buchanan, who highlighted the center’s new issue brief on term limits before introducing the panelists: Caroline Fredrickson, senior fellow at the Brennan Center; Jamal Greene, professor at Columbia Law; and Gabe Roth, executive director of Fix the Court.
Fredrickson began with a walk-through of the changing role of Supreme Court justices over time. The sweep of judicial review has only grown, Fredrickson claimed, and now constitutes an unreviewable power over nationwide questions unforeseen by the Framers of the Constitution. Given the length of service today, she questioned whether “nine unelected people” deserve to have such an impact.
Picking up on Tanden’s introduction, Roth examined the recent, dramatic lengthening of Supreme Court terms. Until President Richard Nixon nominated four justices in the span of as many years in the early 1970s, Supreme Court justices served for an average of 15 years. Today, Roth said, the average is 28 years. He highlighted recent justices who surpassed that average: Scalia served for 30 years, Justice Anthony Kennedy for 29, Justice John Paul Stevens for 35 and Chief Justice William Rehnquist for 33. Roth attributed this increase both to advances in medicine and also to political strategy. As nominations have grown more politicized, he suggested, justices may have chosen to wait to retire if they disagreed ideologically with the president.
Greene further explored the fracturing of the nominations process. With a handful of exceptions, he said, most Supreme Court nominees throughout history were confirmed with little fanfare by a voice vote in the Senate. In contrast, Green labeled the modern nominations process a “partisan sideshow.” The last three justices – Brett Kavanaugh, Neil Gorsuch and Elena Kagan – Greene noted, were confirmed by essentially “party-line votes.” He picked up on a suggestion by Fredrickson that the shift in the court’s docket from narrow disputes to nationwide debates over fundamental rights, beginning with the Warren court in the 1960s, is somewhat responsible. After the Garland/Scalia debacle in 2016, Greene predicted, we should now expect the Senate “to regularly not take up” a proposed nominee by a president of the opposing party.
Roth turned to a survey of the scope of term-limit proposals. Most common, he said, is an 18-year term – first championed by Federalist Society co-founder Steven Calabresi – with a new vacancy every odd-numbered (i.e., non-election) year. The 18-year proposals diverge from here. Some would have justices who serve out their full terms become “senior justices” able to temporarily rejoin the court in the event of an unexpected vacancy. Others would have term-limited justices rotate down to a lower court with senior status – an option that is currently available, and commonly exercised, by retired justices.
Roth briefly noted a few additional reform proposals. Under one plan, a biweekly rotating Supreme Court bench comprising nine justices would be selected via lottery from among every sitting federal circuit judge. Others include simply expanding the size of the court (known as “court-packing”) and instituting a so-called “five-five-five” plan for a 15-justice bench, on which five Republican-appointed justices and five Democratic-appointed justices together would choose the final five justices to serve alongside them.
Greene then emphasized the rarity of life tenure for judges. Ours is the only Western democracy of which Greene is aware with life tenure on its highest court. Among the states, Greene said, only Rhode Island has life tenure, with no term limit or retirement age, for its supreme court justices. That unusual status, to Greene, underscores the need to reconsider the court’s structure.
The discussion then turned to what benefits term limits might provide.
Fredrickson offered that staggered terms could keep the bench more “in step” with the general public. Service on the Supreme Court, she argued, used to be the “capstone” of a judicial career, not a career in itself. Today, justices confirmed a generation – or multiple generations – ago still sit on the bench. Additionally, a regular schedule for nominations could “diminish some of the outrageous partisanship” present in the nominations process, Fredrickson believes, by alleviating the urgency with which the Senate and president approach vacancies.
Roth cited studies demonstrating that, at the current pace, we will see only around 25 new justices appointed to the Supreme Court this century. During the past 100 years, he said, that figure was closer to 50. Greene highlighted the potential for 18-year terms to boost the quality and diversity of nominees by eliminating the rush to prioritize younger and younger candidates solely for their ability to guide the direction of the court for decades to come.
Finally, the panelists debated how term limits might be enacted via legislation, as opposed to a constitutional amendment.
Fredrickson began with an overview of the role of Congress regarding the federal judiciary. The Constitution, she emphasized, says remarkably little about the structure of the judiciary. Most of the current system has been developed through a series of Judiciary Acts passed by Congress, the most fundamental of which came early in our nation’s history in 1789.
Turning to the language of Article III of the Constitution, Greene explained that the document says only that justices shall retain their posts “during good behavior.” That phrase has been traditionally read to require life tenure. Greene suggested that term limits, however, would not violate the Constitution if any statute made clear that justices may be removed from office during their 18-year terms only for violating “good behavior.”
Roth covered the recent history of proposed legislation, noting that most past bills have failed to gain bipartisan support because parties generally favored or opposed calls for reform depending on whether they controlled the Senate and White House. He highlighted Fix the Court’s proposal, which would institute appointments in odd-numbered years with 18-year terms while allowing the current nine justices to remain as long as they like. Under this plan, Roth conceded, 20 to 30 years might elapse before all members of the current bench voluntarily retire and a perfect two-year appointment schedule maintaining a nine-justice bench could take effect. The Fix the Court proposal would allow term-limited justices to remain in the judiciary as fully compensated senior justices who could fill in on the Supreme Court if a full-time justice died, resigned or was removed.
In response to an audience member’s question about existing momentum for reform proposals, Fredrickson commended the discussion of court reform among a few Democratic presidential nominees during the 2020 election cycle. The broad support for term limits demonstrated in recent polls, Fredrickson added, should prompt elected officials to continue the conversation. Roth argued that the passage of any reform legislation would require “looking outside the judiciary committees” to newer members of either chamber who would be more likely to risk championing a bill to alter the court’s structure. Roth further submitted that any lobbying effort would be best begun in the House, given the Senate’s structural tendency to maintain institutions and balk at rapid change. Greene shared his hope that the current broad coalition in support of term limits – from conservatives like Calabresi to liberals like Fredrickson, who until recently was president of the American Constitution Society – might provide the momentum needed to institute them.
Another audience member asked whether any current justices have voiced support for term limits. Such support appears to be rare: CAP’s issue brief highlights a concession from only one sitting justice, Stephen Breyer, that term limits would be “fine” at a 2016 conference hosted by the Association for American Law Schools. Roth, sharing that Fix the Court has made an effort to raise the question of term limits whenever justices participate in a public Q&A, lamented that the campaign has yet to garner much success. He added, however, that a number of justices – including Chief Justice John Roberts – made public statements in support of term limits before they were appointed.