As the new Supreme Court term dawns upon us, there have been serious questions raised about the legitimacy of the Court and what reforms need to be made. My friend and fellow Louisville Political Review writer wrote a compelling piece that asserts many points for reforming the Supreme Court. Some argue that Supreme Court term limits will help reduce the tension within the judicial sphere, but the opposite is true. Therefore, a response is needed.
Term limits for Supreme Court Justices are unconstitutional. Any proper understanding of the Constitution reads the document to give Justices life tenure, and that has been the interpretation since the ratification of our founding document. Article Three, Section 1 states that “judges…of the [Supreme Court]… shall hold their office in good behavior.” Anything contrary to that command by the Constitution is not allowed within the law. Therefore, as it is understood, the Constitution is the supreme law of the land and a legislative action that would impose term limits wouldn’t be able to pass muster. The term limits bill introduced by House and Senate Democrats would not suffice.
There are practical concerns regarding court term limits, as well. As previously mentioned, House and Senate democrats have introduced legislation to impose term limits on the Supreme Court. It has been argued that a routine switch of justices (over a period of however many years), would settle the political and judicial fire, but that is simply not the case. The political and judicial fire can be summed up to a few recent developments. Confirmation battles have been hotly contested with the nominations of Robert Bork, Clarence Thomas, the three Trump judges, and then-Judge Ketanji Brown Jackson. They all had rough confirmation battles, mainly due to the political climate of their time.
Those forces are strong and will continue to be strong with regard to judicial nominations. The same groups bolstering and supporting nominees of the day will continue to be the one’s supporting the ones of the future. It is well known that the Federalist Society was influential in the nominations of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The Federalist Society helped President Trump make a list of 21 potential nominees. Similarly, groups on the left swiftly came to Justice Ketanji Brown Jackson’s corner when she faced attacks from the right. Groups such as Demand Justice and eleven other organizations wrote a letter urging president Biden to nominate a judge with a public defender background—and of the three speculated judges Biden was choosing from, Jackson was the only one with such a background.
An 18-year term limits plan would allow for an unbalanced Supreme Court in very short order. Under the 18-year term limits plan, presidents would be allowed two Court picks per term. So, any two-term president is basically allowed to pick 4 of the 9 seats. Most presidents since Ronald Reagan have had two justices confirmed in their tenure and that seems to be the political and judicial norm. Allowing for one president to name this many nominations would cut against the political grain. What makes it worse is that sometimes party control of the White House doesn’t change every term. Rather, the composition of the White House could change every 8-12 years. .In theory, a two term Democratic president and a one term Democratic president back-to-back could appoint two-thirds of the Justices on the Court.
Having the composition of the Court change so often could cause too much ideological change and instability. Overturning of precedent in recent years has ramped up due to the shift in ideology, but still, overturning precedent is rare and typically limited to five cases per term. The ideological differences have been getting steeper and the divisions are stark. Some justices use a historical approach called originalism, while others believe that the Constitution is a living document and the meaning changes with the times. Some Justices look at statutes by the plain words and other Justices look at the purposes and consequences; some Justices think that precedent is important and that stare decisis is crucial to judicial stability, and others think wrong decisions of the past should be overturned immediately. These sides are irreconcilable, and allowing for term limits, especially when the Justices are picked by every presidential administration allows for too much instability within the judiciary. Law is supposed to be predictable and the average person should be able to understand what the government is doing.
The confirmation process could be eroded even further by term limits. As we all know, Republicans blocked then-Judge Merrick Garland because Justice Antonin Scalia died during an election year. The blocking of Merrick Garland was unprecedented. He was given no hearings and eventually no vote on the matter before the election. It was a scene of pure partisanship. The seat was open for a little under a year. The confirmation battles have escalated just with the Trump Judges. Allowing for the possibility of the United States Senate to obstruct Supreme Court nominees seems it would be more detrimental. Hypothetically, an opposite party Senate could block the nominees for four years, regain the Presidency, and then appoint four Justices in just their first term. One seat opposed to four seats. Which would you prefer? Allowing for this level of potential obstruction would leave the confirmation process of the judicial system worse than what it is today.
In reply to my friend who compares our system to two other modern countries with regard to our Court system. And while term limits may work for France and Germany, that is how their Constitutional Courts were originally set up, and their nations are accustomed to it. My friend is right when they say confirming justices would be a routine affair, but it would be a hyper-political routine affair, which in turn makes the country worse off.
The question boils down to this: are term limits the right solution to the perceived politicization of the Court? Absolutely not. Life tenure makes politicization of the Court harder, not easier.
Perhaps, the methodologies, such as originalism and textualism used by the current Court, are the more important and dangerous forces causing the perceived politicization of the Court. And maybe, the Court should look at itself and wonder if the decisions they are making are having bad consequences for the country, and ultimately, themselves.
Louisville Political Review 