Should the Supreme Court instate term limits for justices? | The Tylt

Should the Supreme Court instate term limits for justices?

In light of the fierce battle over the appointment of Judge Brett Kavanaugh to the Supreme Court, many are wondering if the time has come to limit the terms served by justices. Currently, Supreme Court justices serve out lifetime appointments, sitting on the court until such time as they see fit to leave or they die. Justices, like Kavanaugh who is 53, could potentially serve on the court for upwards of 30 years, dramatically changing U.S. law. Proponents of lifetime appointments however, say they keep the justices independent. What do you think?

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James Lindgren, a law professor, and Ross M. Stolzenberg, a sociology professor, stated in a Los Angeles Times op-ed that term limits would dramatically decrease concerns that frequently swirl around Supreme Court nominees. 

Long tenures on the court also provoke a fear, reasonable or not, that an ill-considered appointment could damage the nation for a long time. That fear worsens already acrimonious confirmation hearings, often marked more by exaggerated claims and character assassinations than with evidence of the quality of jurisprudence that a nominee would bring to the court.
Term limits of 18 or 24 years for Supreme Court justices would fix many of these problems. Under staggered 18-year term limits, for example, one of the nine seats could be filled every odd year. If any justice died or retired before the term was up, a replacement would fill only the remainder of that term. Thus, there would be no partisan advantage in retiring early because doing so would not change the schedule of regular appointments.
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Thomas W. Merrill, a professor of law at Columbia University, argued in a March 2014 debate that instating term limits could do the opposite and actually overly politicize the court.

Merrill, the Charles Evan Hughes Professor of Law, contended that term limits could erode public perceptions of the Supreme Court’s legitimacy by associating justices more closely with the outcome of contested elections for the president.
“Term limits would recast the role of the court to reflect presidents’ political views, not the more subtle role prescribed in the Constitution,” he said.

As can be seen in the Kavanaugh hearing, the position has become much more closely affiliated with politics in recent years. But a prescribed term limit could increase the problem.

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Lee Drutman wrote for Vox that instating term limits would prevent dramatic, partisan departures from the court. 

The idea of term limits for Supreme Court justices (10, 12, or 18 years are the most common proposals) has been floating around for decades. But the increasingly contentious nature of the confirmation process should give this proposal new urgency.
For one, it would significantly decrease the likelihood of another unexpected departure, like the one caused by Justice Antonin Scalia’s death almost a year ago now. Scalia was appointed in 1986. He would have been term-limited out long before his passing. In these partisan times, justices are staying on the bench longer, not wanting to leave unless they can be replaced in a political environment that ensures a replacement on the same side. Which makes them more likely to die on the bench.
Moreover, if justices were staggered in their terms, everyone in Washington would know they’d have another opportunity to change the Court again soon enough. This regularity could also move toward more of a norm of fair play.
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Stephen I. Vladeck and John C. Eastmen, both law professors, argued passionately against the use of term limits in a March 2017 op-ed for The Dallas News. The pair covered several issues they saw with term limits for Supreme Court justices, generally saying that it would not solve any of the issues with politicization of the court.

One has to see the world through particularly rose-colored glasses to believe that term limits would all of a sudden cause the political branches to stop holding Supreme Court seats hostage to the politics of the moment. If the last year has taught us nothing else, it has taught us that there appears to be no political penalty for the party in control of the Senate to run out the clock on nominees by the president of another party, even when that clock stretches out to a full year. Why and how would term limits change this behavior?
...[F]rom the justices' perspective, term limits create the very risk that the Constitution's protections of judicial independence were meant to abate: that, in considering their life after their tenure on the Court, they might be beholden to outside forces in their exercise of the "judicial power of the United States." After all, even with 18-year terms, Justice Thomas would have had to step down from the Court in 2009 at the age of 61. Unless we also mandate that former justices fully retire, they will inevitably feel pressure to take up other income-generating positions after their time on the court, pressure from which life tenure is supposed to insulate them.
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In the Chicago Tribune, a preeminent Watergate scholar James Robenalt relayed what happened with President Nixon, a conservative president, was able to place four justices on the court. This kind of power can change the face of the country permanently.

The court could find itself unmoored from the political beliefs of most Americans, and it could be decades before that changes — even if the Congress and presidency change over the next four years through a series of liberal or progressive victories.
History, even history within the memory of many alive today, confirms how dramatic and lasting change can be on the Supreme Court.
In 1968, the presidential election focused on the liberal Warren Court. Richard Nixon promised to appoint only “strict constructionists,” a code for conservative justices who would reverse many of the Warren Court’s opinions on crime, busing and pornography.
By the most amazing turn of events and some behind-the-scenes planning (not unlike the apparent campaign to convince a healthy Justice Kennedy to step down), Nixon remade the court with four appointments in just his first term. Even Watergate could not stop him.
As important, two of his appointees — Warren Burger and William Rehnquist — would each serve as chief justice of the United States. Together, these two men dominated the court for 36 years — nearly four decades.
President Trump stands to repeat that history. Except this time, the people he nominates for the court can be expected to be far from the mainstream. Remember that Nixon faced a Democratic House and Senate and his picks had to be more in the moderate judicial category to get past the Senate. Two of his nominees from the South, for example, were rejected.
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Should the Supreme Court instate term limits for justices?
A festive crown for the winner
#LimitTheCourt
#LifetimeAppointments