The Supreme Court’s main objective is to make decisions in significant legal cases with constitutional implications. The Court has the final say, and as the other branches of government have increasingly come to a stalemate over issues, its significance and power have only increased. As a result, nominations have become crucial to long-term political agendas and essentially depend on a justice’s passing away or retiring in order to achieve some degree of parity. Henceforth, justices serving on the federal bench should have term limits.
The death of Justice Antonin Scalia and the controversy surrounding his replacement are an example of why term limits are important. President Obama, on his way out, had a chance to rebalance the court and nominate a new justice to take Scalia’s place. It was one of the rare times when duty and opportunity both collided, as the President was required to nominate someone for the newly opened position. However, the Republican-controlled Senate had other ideas. Anxious to avoid a liberal majority on the Supreme Court, Senate Republicans stonewalled and refused to even interview the nominee that was chosen. The election taking place later that year would determine whether they would have a chance to present a nominee of their own. As a result, the position was left vacant for almost a year while an election determined the future of the Supreme Court. Importantly, one key member of the Senate was able to completely stonewall the procedure. Senator Mitch Mcconnell (R-KY), the Majority Leader at the time, shut down any chance of a nomination for the better part of eight months. It was an extraordinary statement of power by the Senate leader.
Four years later, on the eve of another critical election the same thing happens. Ruth Bader Ginsburg, an iconic liberal justice of the court, dies suddenly. Again, cable news runs wall to wall coverage of her death and the implications. In less than two weeks her replacement is already interviewing in Congress and has an appointment ready in the White House. In fact, then President Trump had been quoted as “saving” Amy Coney Barrett, the judge who would ultimately replace Justice Ginsberg, as a replacement in the event of her death or retirement. In this respect, things play out quite differently. Instead of her hearings being held up and being denied interviews by members of the Senate, her hearings are expedited and she is confirmed in less than a month. Mcconnell again plays a key role in making this happen, expediting the process on the eve of the 2020 election.
At the root of these examples are two simple questions. Why should an institution tasked with such an important purpose have life tenure? Can an institution, and its participants that function off of lifetime political appointments ever be truly independent?
The simple answer is no. The idea of keeping justices independent through life tenure may have been well-intentioned, but in reality, it hasn’t worked out that way. Nominees typically have to run through a series of hoops in order to be considered. Certain nominees are often selected less for their judicial independence, and more for whether their rulings go in a certain direction or another. Amy Coney Barrett in particular, was known for her strongly conservative views. So was Brett Kavanaugh. Even though in their hearings they often referred to a respect for precedent, both were open about their views on certain topics such as abortion or the Affordable Care Act. Adding to that, political groups like the Federalist Society have close ties to many of the current conservative members of the Supreme Court, meaning they are able to disproportionately influence the direction of the court. In fact, the Federalist Society is the reason many of the recently confirmed justices were considered at all. On top of influencing much of American legal thought, the Federalist Society is responsible for putting forth many of the recent conservative justices over the past 40 years. While outside organizations are nothing new in terms of politics, it is a different discussion altogether when the members of the institution serve for life. Other, more grassroots organizations like Planned Parenthood tend to exist on the periphery of the process. While groups like Planned Parenthood may still receive an audience by the President, depending on who’s in office, they don’t receive nearly the same attention and deference as a group like the Federalist Society. In fact, groups like Planned Parenthood often have to resort to going to the media, and other forms of direct action in order to obtain an audience.
Polarization and the Court
This dynamic becomes ever more important when considering the importance of their task. The Supreme Court has the final say on most constitutional matters. In many cases, the outcomes have the ability to decide the rights of entire groups of people or the authority of government agencies. How can these rights be litigated and decided equitably in such a brazenly partisan process, by lifetime justices? In theory, Congress could pass a new law or codify an existing legal practice into law. It could make an end-run around the Supreme Court’s decision or come up with a new law. Without clear voting majorities in either direction, however, that theory becomes increasingly difficult to put into practice. The endless political gridlock means that major legislative issues are taken out of the hands of elected officials and put into the hands of a small, unelected body whose thinking and priorities are outside the sphere of public influence. Placing term limits on Supreme Court justices would allow for a degree of churn, and as a result introduce more ideological diversity in an institution that desperately needs it. The current, hyperpartisan chariot race that has come to embody the Supreme Court and its nomination process, has become something many Americans have come to resent.
According to a poll conducted by the Associated Press, 2 out of3 Americans feel that Supreme Court justices ought to have some sort of term limits. Even fellow judges feel that the Supreme Court should institute some sort of term limit. Of the judges surveyed in a poll by the National Judicial College, over a third felt that Supreme Court Justices should serve a term of somewhere between 11 and 19 years. In talking about why, they felt that it would offer things like political stability and remove the immense pressure of nominating a Supreme Court justice.
How Do Other Democracies Do It?
In considering what we can do, we should consider what other countries do. Take Germany as an example.The judges on the German Federal Constitutional Court serve for a set term of 12 years, with each term being appointed by a different arm of the German legislature. Those who serve on the Constitutional Council in France, which serves a similar function to the Supreme Court, serve 9-year terms. Two of the strongest democracies mandate terms for their constitutional courts. Why don’t we? In theory it makes sense. 9 year, or 12 year terms could make it so that Supreme Court nominations would become a routine affair. Instead of waiting for Samuel Alito to die in his sleep, someone else could fill the position at the end of his 12 year term. In practice, however, things are always different. In practice, any attempt to restructure the court would have to somehow get through the political, rain soaked mudpit of Congress. That’s a tall order for a chamber of government that can’t even agree on how to tax or protect its citizens.
Regardless, I believe that such an important position requires churn. It requires a constant set of clear minds and political balance in order to find the best outcome for all parties involved. Without that, how can we consider it to be a fair, and credible institution? How can anyone trust it? In order to save this institution, and by extension, our democracy, we must set term limits for Supreme Court justices. If we truly occupy the kind of stage, the megaphone that people say we do, then we have to use it. Even if it doesn’t succeed the first time, we still have to try. We have to try, and then try again.