Why a Radical Supreme Court Reform Is Catching On
In this column, erstwhile attorney and GQ staff writer Jay Willis untangles the messy intersection of law, politics, and culture.
Since the confirmations of ultraconservative Trump nominees Neil Gorsuch and Brett Kavanaugh to the Supreme Court, and the unprecedented Senate blockade of President Barack Obama's nominee, Merrick Garland, in 2016, Democratic politicians have been debating radical Court reform ideas more seriously than at any point since the Great Depression. Already, eighteen-year term limits are part of the platforms of 2020 hopefuls Beto O’Rourke and Andrew Yang, while candidates like Elizabeth Warren, Cory Booker, and Kamala Harris—all lawyers, by the way—have also expressed interest in turning the 250-year old tradition of judicial life tenure into something a little more predictable.
Under the most common iteration of a term limits plan, each president would appoint two justices at fixed intervals during his or her four years in office. With each new addition, the longest-serving justice would take “senior” status, retaining the title and salary of Supreme Court justice but no longer regularly hearing Supreme Court cases. If a justice were to die or resign, a senior-status justice could act as a substitute until the Senate confirms the next scheduled replacement.
The Constitution’s framers, wary of dynastic monarchs and the entrenchment of political power, decided that senators would defend their seats every six years, members of Congress every two, and presidents every four. (A century and a half later, after Franklin D. Roosevelt’s four straight successful White House bids, the states ratified a constitutional amendment limiting every chief executive thereafter to two terms.) The framers did not, however, prescribe lengths of service for federal judges. Instead, Article III guarantees their jobs during periods of “good Behaviour,” which means that those who do not commit crimes enjoy life tenure on the bench. The intent was to protect judges from retaliatory ouster and prevent them from feeling pressured to enact the political agenda of their benefactors, thereby ensuring the blind administration of justice.
But life tenure in 2019 means something very different than it did in 1789, when most people died in their 40s and cutting-edge medical science relied heavily on practices like bloodletting. Throughout most of the 20th century, the average Supreme Court tenure was around 17 years; by the end of the 21st century, it could be as high as 35.
Meanwhile, says Orin Kerr, professor at the University of Southern California’s Gould School of Law and longtime contributor to the influential conservative legal blog The Volokh Conspiracy, politicians are increasingly reliant on the Court to resolve "major social problems": in the past year, abortion rights, Trump's Muslim ban, and gerrymandering, among many others. Berkeley School of Law dean Erwin Chemerinsky has theorized that the framers would be dismayed by this consolidation of power in life-tenured, unelected justices, since the democratic processes the framers intended to act as checks on the Court—nomination and confirmation—occur far less often than they could have predicted.
Gabe Roth is the executive director at Fix the Court, a nonprofit that counts term limits among its many goals for modernizing the Supreme Court. He acknowledges that term limits would not cure everything that ails the institution. They would not, for example, prevent the appointment of a Kavanaugh-esque extremist when one party controls the White House and the Senate, or standoffs like the Garland fiasco, when a Senate controlled by one party refuses to even consider nominees put forth by a president of the other.
But, he argues, term limits would make the justices more accountable—if not to the people who appoint and confirm them, then at least to the voters who select the appointers and confirmers. “At a time when the justices are acting like politicians,” Roth says, “it’s a mechanism for reining in their power.”
Today, part of the reason vacancies become such cataclysmic events is that no one knows when the next vacancy will occur. There were none, for example, between 1994 and 2005—more than two full presidential terms. “It’s an incredibly strange system, to have this critical branch of government hinge on the health of a handful of octogenarians,” says Kerr. By doing away with this uncertainty, term limits could reduce the stakes of each confirmation battle and the acrimony that seems intrinsic to the process.
Because senior justices would sit in after unexpected departures, term limits would discourage strategic eleventh-hour retirements before a friendly president or Senate majority leader leaves office. And they would discourage presidents, eager to influence the Court for decades beyond their time in office and on earth, from prioritizing youth when searching for nominees. Instead, presidents could pick seasoned candidates who would bring a wealth of experience to the bench—in other words, the sort of candidates equipped to do the job best.
Not everyone agrees term limits would make the Court a better institution, however. In an article forthcoming in the Texas Law Review, Vanderbilt University Law School professor Suzanna Sherry and Vanderbilt law student and Ph.D. candidate Christopher Sundby studied how abortion rights would have fared if term limits had been in place when the Court decided Roe v. Wade in 1973. Their model’s sobering prediction: In 46 years, the Court would have overruled, reinstated, and then overruled Roe again. “This is a level of constitutional zigzagging that has never been seen in the Court’s history,” they write, warning that self-induced doctrinal instability could erode the its credibility and lead to defiance of its decisions.
Term limits also raise the specter of the justice who begins thinking about life after the bench before actually leaving it. Ex-justices might want to run for office, or become lobbyists, or begin lucrative careers as appellate litigators—an elite section of the Supreme Court bar made up of those who used to wear its robes. A ticking clock could prompt these self-interested considerations to influence a justice’s decision-making process.
Other critics posit that term limits could make presidents more likely to nominate ideologues when they can, and encourage those ideologues to deliver an immediate return on the president’s investment. “Individuals may feel that their time with a certain cohort or their time on the Court is finite, and "take more extreme positions to take advantage of the moment,” says New York University School of Law professor Melissa Murray. If a justice knows they have only 18 years to make their mark, they might not want to wait around to do it.
There is one other tiny problem with term limits: At best, the Constitution is silent about them, and at worst, it prohibits them outright. Some proponents, including Roth and the 21 law professors who have signed on to Fix the Court’s proposal, believe Congress can legislate term limits, since “senior status” justices would retain the benefits of life tenure and occasionally hear cases. Yale Law School professor Judith Resnik has argued that the Court could find such a law constitutional by simply reinterpreting “the meaning of ‘good behavior’ to sanction a term limit.”
This is not a widely-held position in the legal academy. Kerr, who supports term limits, and Murray, who does not, both believe a constitutional amendment is necessary to force Article III judges into semi-retirement. And even if Congress were to try passing term limits, it’s an open question as to whether five justices would ever sanction such a drastic curtailment of their own institution’s power.
The Court’s conservative majority means that right now, the most enthusiastic fans of term limits are Democrats. But 2016 Republican primary candidates Ted Cruz and Marco Rubio supported them; so did Rand Paul, and Ben Carson, and Mike Huckabee. One of the most influential term limits proposals was authored by Federalist Society co-founder Steve Calabresi back in 2006. This is not an inherently liberal or conservative cause—it is the cause championed by whoever has absorbed the most defeats of late.
To remove the scoreboard as a practical barrier to implementation, Kerr suggests that a proposed amendment not take effect until a predetermined number of years after ratification—25, perhaps, when no one can map out the intervening presidents, senators, and judicial departures with any degree of certainty. Such a long-term perspective would prevent this reform from being a knee-jerk reaction to who sits on the Court now. It would simply be about refreshing an outdated constitutional framework, and making democracy a little more democratic.
Originally Appeared on GQ
