Why SCOTUS Term Limits Will Lead to a Fairer Court

IIn 2021, I served on President Joe Biden’s Supreme Court Commission and presented a report to the administration discussing possible reforms. Now that President Biden has approved some of these proposals, it is time for a more public conversation about what should be done and how.

Two points are crucial: First, term limits are the path to a fairer Court, a necessary structural solution to a broken nomination process. Secondly, they can be implemented by law, rather than by constitutional amendments.

Let’s start with the first point. Currently, the President appoints a new Minister whenever a vacancy arises. That depends on whether a judge dies unexpectedly or whether a sitting judge feels inclined to let the president name a successor. We have this system because of the Constitution, but the Constitution was written by people who did not anticipate the party system. In a world without political parties, it doesn’t really matter how many nominations each president receives. Different presidents may have different opinions about who the best judges are, but there is no ideological fight.

The Founders’ vision was limited in this regard: Soon after the Founding, the party system emerged and parties began fighting for control of the Supreme Court. When the Federalists lost the election of 1800, a lame-duck Federalist Congress reduced the size of the Court to prevent Thomas Jefferson from making appointments. Jefferson’s Democratic-Republicans promptly restored the size and later increased it. A Democratic Congress added two more seats during Andrew Jackson’s presidency, increasing the Supreme Court’s pro-slavery tilt and contributing to the infamous Dred Scott decision. A Republican Congress added another when Abraham Lincoln became president, hoping to push the Court in the other direction.

For a brief period during the 20th century^th century, partisan tensions eased. The legal elite from whose ranks the Supreme Court justices were drawn had a relatively homogeneous worldview, and therefore Republican appointees like Earl Warren and William Brennan turned out to be more liberal than Democratic appointees like Byron White. The Court that voted 7-2 in favor of abortion rights in Roe v. it had six Republican nominees and one of the dissenters was a Democrat. But by the 1980s, the legal elite was polarized and appointees became more credible in terms of promoting the presidential nominee’s constitutional vision. We have now reached a stage where neither party is likely to appoint a judge without a good idea of ​​how that person will vote.

Therefore, we have political parties fighting for control of the Court and supplying it, whenever possible, with reliable votes. That would be fine if its ability to do so had any bearing on the will of the American people. If a party can promote a widely shared constitutional vision, the Court will appear sensible, even statesmanlike. But if one party controls the Court despite representing a minority of the American people, the Court will appear political and extremist.

That’s what’s happening now. Republicans have a 6-3 supermajority on the Court despite losing five of the last eight presidential elections. If each president had equal influence on the Court — if each president appointed two justices for four-year terms, for example — the Court would be 6-3 in favor of Democrats. We would have two judges appointed by Biden, two by Trump, four by Obama and one by George W. Bush. It is this stark divergence between national elections and control of the Court that makes the current Court appear extremist and political. In fact, only once have we seen such a departure from egalitarian presidential impact – the 1857 Supreme Court ruling Dred Scott and destroyed the nation.

See more information: These are the Supreme Court reforms Biden wants

An 18-year term system for judges, in which each president receives two appointments per four-year term, is a structural solution to this problem. It would ensure that – eventually – the Court comes back into line with the constitutional vision of the American people. However, “eventually” could take a long time, and if we want to get the Court back to where it should be ideologically, the only short-term solution is expansion.

But that’s a topic for another time – today, it’s not worth asking how many judges we have he must we have, but how many do we to do to have. This question turns out to be the key to the second crucial point: term limits can be enacted by law. They don’t need a constitutional amendment.

Many think a constitutional amendment is necessary, pointing to the language of Article III of the Constitution, which provides that federal judges “will maintain their positions during good behavior.” An 18-year term limit, they say, violates this provision.

And so it would be, if a judge were removed from office after 18 years. But the proposals say that after 18 years, a judge will leave regular service but continue to perform some judicial duties, as retired judges often do now. Whether this counts as removal from office brings up the question I raised earlier: How many Supreme Court justices do we have? The answer is not nine; there are 12. David Souter, Anthony Kennedy and Stephen Breyer are still Supreme Court justices, although they are retired. None of them left the office.

This may seem a surprising statement, but it is clearly established by law, practice and Supreme Court decisions. The federal statute Governing judicial retirement offers two options for judges and justices: they can retire and cease being judges, or they can “retain the position but retire from regular active service.” If they choose the latter option, they end their period of regular service, but may continue to serve as judges in some cases. (Judge Souter and other retired judges have, for example, decided cases in the Courts of Appeals.) They exercise the judicial power of the United States, which they could not do if they did not maintain their positions. Their wages are constitutionally protected for the same reason. The same sentence in Article III that states that judges must maintain their positions during good behavior says that their salary “shall not be diminished during their tenure in office.” When a trial judge retired under this section and Congress attempted to reduce his salary, the Supreme Court ruled unanimously who could not: A retired judge still holds office with respect to Article III.

Term limits are a necessary solution and can be enforced by law. Whether additional measures such as expansion are necessary is a different question and deserves its own debate. The issue of expansion will inevitably be partisan. The issue of term limits does not have to be this way. Also in 2020, Federalist Society co-founder Steven G. Calabresi called to this as good government reform. All Americans should be able to agree that this would be a step in the right direction.