Opinion | The Supreme Court Reform that Could Actually Win Bipartisan Support

The Supreme Court’s most dramatic term in decades has reignited calls for various types of court reform. Many proposals have an overt, or at least implicit, partisan slant. Progressives, after all, are searching for ways to blunt the court’s sharp rightward shift.

There is one idea, though, that has longstanding bipartisan support, a proven record of success, and practical wisdom behind it: term limits. Imposing term limits on Supreme Court justices would be good for the country and the court. It would help ease the bitterness of the confirmation process and make the court more representative of the public’s views. And while conservatives might currently balk in light of their 6-3 majority, it’s a change that would not necessarily advantage either side over the long run.

The most common version of this reform contemplates justices serving nonrenewable 18-year terms, staggered so that one term ends every two years. This would mean that presidents would get to nominate new justices in the first and third years of their own administrations. Retirements and nominations would occur like clockwork. The result would be a court whose membership, at any given time, would reflect the selections of the past 4 1/2 presidential administrations.

Because Article 3 of the Constitution confers life tenure upon all federal judges, term limits would likely require a constitutional amendment. Yes, constitutional amendments are hard to enact. We have not amended our Constitution since 1992, and we have done so only once in the past half-century. But there is reason — even in these politically polarized times — to believe that constitutional reform is possible.

To start, multiple voices from across the ideological spectrum have endorsed the concept of term limits on Supreme Court justices. One of the earliest proponents of the concept was Northwestern professor Steven Calabresi, one of the co-founders of the conservative Federalist Society. Other academics of all stripes — from conservative luminary Michael McConnell (a former federal judge and my colleague at Stanford) to Erwin Chemerinsky, a leading liberal and dean of Berkeley Law School — have since joined the chorus. Various think tanks and their scholars — from Norm Ornstein of the American Enterprise Institute to Ilya Shapiro, now of the Manhattan Institute, to the Center for American Progress — have also backed the notion. And three justices themselves — Chief Justice Roberts, Justice Elena Kagan and former Justice Stephen Breyer — have suggested at various points in their careers that they see potential benefits in the idea.

What is more, almost every state in the union imposes term limits on its state supreme court justices, a mandatory retirement age, or both. Only Rhode Island has a system of life tenure akin to the federal model. It should come as no surprise, therefore, that when the National Constitution Center held an exercise in 2020 for drafting new constitutions, both the conservative and progressive teams adopted 18-year limits.

A preference for term limits prevails beyond our shores as well. Most constitutional democracies impose term limits, and other major democracies (such as the United Kingdom) impose age limits. The United States, in fact, is the only major constitutional democracy in the world to impose neither term nor age limits.

Of course, our federal government is different in certain ways from state governments, and American exceptionalism is sometimes justified. But here, all signs suggest that our system of life tenure for Supreme Court justices is, at best, an outdated relic of bygone times. Throughout the first 200 years of our history, justices served an average of 15 years on the court. Since 1970, the average tenure has almost doubled. Justices appointed today who are in their 40s or early 50s can be expected to serve between 30 and 40 years — maybe even longer. In this sense, the proposed “reform” of 18-year term limits is, in the words of a law review article by Calabresi and co-author James Lindgren, “ultimately a very Burkean and conservative call for reform because all [it] would do is move the Justices back toward an average tenure that is similar to what the average tenure of Justices has been over the totality of American history.”

This restoration of normalcy would be only the beginning of the upside of term limits. Such limits would also make Supreme Court appointments less random and more closely tied to electoral outcomes. (If we had term limits today, our court would consist of one Biden appointee, two Trump appointees, four Obama appointees and one Bush appointee.) There is no inherent good served when one president gets zero appointments and the next gets several. Nor is there any discernible benefit of having justices serve more than two decades, ever more removed from the commercial and cultural vibrations of our nation. Eighteen years is plenty of time to become settled into the role and to exercise the power of a Supreme Court justice.

Indeed, term limits would enhance the odds of justices serving on the court during the time when we would expect peak performance from them — that is, the optimal mixture of experience, wisdom and mental acuity. Why would we want to maintain a system that incentivizes presidents to put forth ever younger nominees? Under a system of term limits, the public would likely expect justices to be nominated in their late 50s or early 60s and to serve into their 70s.

Finally, and perhaps most importantly, there is good reason to think that term limits would reduce the political incentives (not to mention the rancor) surrounding retirements, appointments and the confirmation process. When justices are perceived — rightly or not — as trying to time their retirements so that presidents of particular parties can replace them, the public cannot help but think that Supreme Court voting patterns must be tied to politics, not law. By establishing known endpoints to justices’ terms, we could reinvigorate an apolitical feel to the comings and goings of justices.

By the same token, a system under which election to the presidency automatically carries with it two Supreme Court appointments would make such nominations seem less momentous — and, thus, less cause for extreme political machinations. Arguments, for instance, that the confirmation of any new justice should await the next election should be political nonstarters.

To be sure, so long as the Senate retains its constitutional “advice and consent” role, it would seemingly retain the power simply to block any presidential nominee not to its liking. One would hope that the public, under a system of regularized term limits, would not stand for any exertion of such raw political authority. But if any such practice developed (or if there were sufficient reason in advance to think it would), a further constitutional tweak may be in order.

Skeptics of term limits have raised a few other concerns. First, they argue that increased turnover on the court (compared to the past few decades) will lead to less stable law. But the converse seems just as likely: A steady stream of justices who are fresh to the institution might generate more deference to the institution itself. Putting aside the conservative movement to overrule Roe v. Wade, new justices are historically more willing to accept precedent as they find it. Moreover, if the reform indeed produces appointees that are somewhat older than those in recent years, the greater seasoning that often comes with age would likely produce justices in future years with more measured, and less revolutionary, views.

Some also worry that justices under a system of term limits might become less independent because they might perform their duties with an eye toward a professional career beyond their service on the Supreme Court. Again, age is a mitigator here. If justices aren’t appointed until their late 50s or 60s, serious post-judicial careers seem unlikely.

Lastly, one might reasonably wonder why in the world we should favor a system that would result in more confirmation hearings. Have we learned nothing, one might ask, from recent history? In response, I will end where I began. The whole point of term limits would be to regularize the appointment and confirmation process; to make the nominations of new justices more unremarkable; and generally to lower the temperature regarding the court and its personnel. The reform would not be a panacea. But it would curb our worst instincts and tendencies that have developed in this realm. And that can only benefit the American people and the rule of law.

The framers expected that their grand structural design would be adjusted as our democracy and norms evolved. Such adjustments have proven to be a vital means of sustaining our republic. The original Constitution, for instance, called for state legislatures to select U.S. senators. In 1913, however, we amended the Constitution to give the people the right to elect their senators directly, having learned that legislative selection was prone to deadlock (and thus prolonged vacancies) and capture by special interests. In 1951, we capped the number of terms the president may serve at two, recognizing that periodic turnover at the top of the executive branch better served our country.

It is past time to attend to our third branch — that is, to modify the rules governing the tenure of Supreme Court justices. The ongoing health of our tripartite form of government may depend on it.

Parts of this essay are drawn from a module drafted as part of the Report of the Practitioners Committee to the Presidential Commission on the Supreme Court. Professor Fisher was a member of that committee.

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By: Jeffrey L. Fisher
Title: Opinion | The Supreme Court Reform that Could Actually Win Bipartisan Support
Sourced From: www.politico.com/news/magazine/2022/07/21/supreme-court-reform-term-limits-00046883
Published Date: Thu, 21 Jul 2022 03:30:00 EST

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