Give credit where credit is due. Congressional Democrats Joe Kennedy, Ro Khanna, and Don Beyer proposed new legislation that would set term limits of the nine Supreme Court justices to eighteen years. A second component prevents a president from seating more than two new justices in a four-year term. I haven’t agreed this much with Democrats since Joe Biden introduced the 1994 Crime Bill.
The timing of the bill’s introduction is not coincidental. We need not delude ourselves that the leftist-besieged Democratic Party is operating with any motive of fairness or consideration of what is best for one of America’s oldest and most revered institutions. Indeed, there would be no such proposal under a Clinton presidency.
Nevertheless, their ideas are worth exploring.
The first part of the bill’s two provisions is the establishment of term limits. Term limits are not new, and their history is well documented, although typically the conversation revolves around congressional representation. A brief recounting of the idea, as well as the pros and cons, can be found here.
What would term limits accomplish on the court? For one, it would deconstruct the lasting authority of just a few individuals. Whereas a president is termed, and even congressional representatives can eventually be voted out, justices are left to their own volition or fate as to when they depart from the bench. It is fair to ask if a single person deserves to wield considerable legal influence for thirty-six years, as was the case of the court’s longest-tenured justice, William Douglas. This all, of course, was initially by design; the fact that they were not directly voted in or out was to ensure the seats did not become politicized, and the indefinite service was an intentional feature to keep them above the political fray.
But a 28th amendment is not unusual or even undesirable,
In today’s highly partisan atmosphere, Democrats expect nominees to legislate according to contemporary cultural values, rather than adhere to Constitutional principles. When Brett Kavanaugh is vilified for being a white man and Ruth Bader Ginsberg is beatified for being a progressive activist, it is beyond clear that the goal of an apolitical body has not worked out as intended. To be sure, it is the left that has inundated the high court with politics; the fact that practicing law based on Constitutionality is now derided as extremist, right-wing behavior reflects on the political left, not the political right.
Still, something has to give. That, or we make Clarence Thomas a one-man Supreme Court. But I don’t see the left acquiescing to that idea.
As an added bonus for conservatives, this measure would also help safeguard against turncoat justices appointed by Republican presidents. Since 1975, their appointees John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, David Souter, and John Roberts have failed to deliver strict adherence to the Constitution the way conservatives envisioned. While Democrats always seem to deliver on their lifelong pick, the same cannot be said of Republicans.
The second part of the bill is actually the one I like more. Creating a ceiling of two appointments allows for a president to reflect the will of the voters in judicial nominations, but also allows for future voter voice, when they elect a different party, to equally influence court decisions. As it stands right now, the nomination of justices by a president comes down to sheer luck. President Trump inherited a vacant seat, a retirement, and a death in just three years. Presidents Obama, Bush 43, and Clinton each successfully appointed two justices in their entire eight-year spans. As a Constitutionalist, I certainly celebrate the fortuitous vacancies and the opportunity for actual judges to be seated, as opposed to activists, but it would be extremely short-sighted to not notice the vicissitudes of political reality and not expect to one day see a hardcore leftist president have the same opportunity. It is as much a chance for voters to speak out on appointments as it is a hedge against judicial tyranny.
Of the many concerns in need of vetting, though, the court runs the risk of an even split on major decisions. What if Trump had his two appointees in Gorsuch and Kavanaugh and was legally barred from adding a third in a time of great need? This is exemplified best by the predicted 4-4 division among justices if the 2020 Presidential Election needed to be decided by a legal body. Obviously, this wouldn’t go over well with anyone as it currently stands, but it shouldn’t preclude us from recognizing the merits of the law as intended.
In the spirit of this proposed law, I think it only makes sense to codify term limits for each of the three government branches, Congress included. The introduction of a sister bill that codifies the term limits of all elected public officials would offer a welcome respite from the likes of Joe Biden (36 years in the Senate) and Nancy Pelosi (33 years in the House). A Republican congressman has been in serving Alaska since 1973, no doubt admirably, but for more than half his life he’s been in this role. The founders envisioned representatives faithfully serving, not enriching themselves by making public service a full-time job or career prospect. One need only realize AOC is just 30 years old to realize term limits need to happen sooner rather than later.
As a condition of Representatives Kennedy, Khanna, and Beyer getting widespread electoral support for their bill, I suggest we hold them accountable to their own term limits as well. Similar eighteen-year caps, equaling three six-year terms, sound about right for Senators, and twelve years for Representatives would allow enough time to get familiar with Washington without getting too familiar.
The executive branch is a public service of decidedly two terms and eight years. If the Supreme Court proposal moves forward, that would introduce limits on a second of the three checked-and-balanced branches. Having all three branches restrained by similar mechanisms would themselves operate as counterweights and continually reflect the will of the American voters.
Time will tell how much press this gets or traction it gains. What is interesting is that, on paper, not much would really change. While the proposal allows for an eighteen-year limit on service, the average term for the court’s 114 total justices is just over sixteen years. While many in recent memory have exceeded that, such as Thomas, Ginsberg, and Stephen Breyer, many others have not. In that sense it is not as much of a game-changer as being pushed out. Then there is the proposal of limiting presidents to two appointments per term. How often do presidents run up against this? Except for a lot of turnover in Nixon’s first term, no president in fifty years has encountered a third appointment in the same four-year term.
It’s certainly more amenable than court-packing.