Should Supreme Court justices have term limits? | The Tylt
Should Supreme Court justices have term limits?
While the executive and legislative branch have specific term limits outlined in The Constitution, The Framers were more vague about the judicial branch:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
It has been interpreted that "shall hold their Offices during good behaviour" guarantees Supreme Court justices a lifetime appointment unless they choose to step down.
Historians have argued the decision to grant Supreme Court justices life terms was to depoliticize the court so they could be nonpartisan and "free from the political pressure experienced by other political officials."
"The Framers wanted judges to be as nonpartisan as possible. By removing their need to run for reelection on various political platforms every few years, federal judges are expected to be impartial in their court decisions in order to uphold the law."
But the case against life terms has gained momentum from both Democrats and Republicans, given years of increasingly brutal hearings that put every Supreme Court confirmation at DEFCON 1.
The politics of Supreme Court nominations are extra ugly — not just because of polarization, but also because the stakes are so high. Unlike every other democracy in the world, here in the US we have lifetime appointments for our Supreme Court. This means that whoever gets appointed could serve for 30 or more years.
Lee Drutman argues in Vox that term limits are one solution to end the "destructive warfare" that has gone into selecting Supreme Court justices in recent years.
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 [...] 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.
Increased life expectancy has created a situation in which Supreme Court justices serve longer and longer―Antonin Scalia served 30 years―but this was never the intention. The first five Supreme Court justices only served about nine years each.
Lifetime appointments also mean justices stay on the bench longer solely due to the political environment they're in, rather than whether or not they are still mentally capable of serving.
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.
Even justices currently serving on the Supreme Court have advocated for term limits. According to The New York Times, Chief Justice John Roberts supported a constitutional amendment that would enforce term limits on federal judges.
In 1983, Mr. Roberts addressed a proposed constitutional amendment setting a 10-year term of office for federal judges. The Justice Department opposed the measure on the ground that life tenure was critical to judicial independence. Mr. Roberts did not disagree, but noted that the framers had adopted life tenure at a time when life expectancy was significantly shorter. He then made an argument in favor of limited terms.
But critics believe lifetime appointments exist precisely to withstand even the most politically volatile climate. David Harsanyi argues in The Federalist that term-limit advocates only bring up the subject when their party is not in power.
It seems to me that whenever partisans express a desire to mitigate the partisan unpleasantness in Washington, what they really want to do is mitigate the other side’s power.
Additionally, as parties become more or less ideologically divided, democracy gives voters the opportunity to change the political landscape, and the Supreme Court should remain separate from such whims.
Political parties reflect the mood and views of a polarized national debate. This is an organic reflection of the nation’s ideological and cultural divide. Unlike the Supreme Court, our democratic institutions offer voters a chance to make changes every few years. One way the court avoids the mercurial whims of democracy is by not changing all the time.
Harsanyi also argues implementing term limits would only make the "destructive warfare" of nominating justices worse, not better. While some may romanticize the idea of Supreme Court hearings becoming friendlier with the elimination of life terms, Harsanyi argues the process would just adapt to the new circumstances without improving.
The only reason we would give “Washington” — partisan, in the best of times — more opportunities to mold the Supreme Court is to make it more political. The nomination process is part of our checks and balances, of course, yet set dates for nominations would almost surely mean the rise of new political infrastructure built around the set nomination dates. Potential nominees, knowing when seats would be filled, would be more induced to make decisions favoring the ruling party’s viewpoints or sucking up to groups that can make them frontrunners.
As Washington becomes more toxic, why on earth would we want to surrender the Supreme Court to the same system responsible for doing so?
According to a 2015 Reuters poll, the vast majority of Americans favor a 10-year term limit for Supreme Court justices, and 48 percent of Americans go as far as to say justices should be elected rather than nominated.
But political scientist Jonathan Bernstein told Quartz he doesn't believe term limits would have the impact people would hope for, and could actually open new, problematic doors.
Term limits could affect justices’ post-court activities in uncomfortable ways. They could attempt to become lobbyists, for example, which would create a public relations nightmare–not to mention potential conflicts of interest. “I fear unintended consequences,” Bernstein says, “especially for an institution which functions reasonably well right now, despite the confirmation fights.”
While Bernstein shares the desire to make the nomination process "less nasty," he believe term limits won't do the trick.
Still, many contend placing so much attention on the potential death of a justice is bound to politicize the court in a not-so-gracious way.
It would be easier not to "politicize someone's death" if they didn't hold a position with a lifetime appointment.