Should the Supreme Court instate term limits for justices? | The Tylt
Should the Supreme Court instate term limits for justices?
The Court has become progressively more polarized over the last several decades, with legislators switching from nominating older politicians, who had experience with compromise and public leadership, to nominating younger, more ideological, sitting judges. With a Supreme Court pick, political parties can have outsized influence on the governance and policy-making of the country long after they were out of power. As The Atlantic explained:
With lifetime appointments, a party in power for two or four years could have sway over policy for decades after it left power.
Some scholars believe term limits will actually increase the polarization of the court, providing each president with several hand-selected justices that would be far more likely to side with their administration. Per Slate:
Court-packing and term limit proposals—which would result in the then-current president appointing more of the justices who serve on the bench while she or he is in office—would mean that the court is even more loyal to the White House than it already is. This outcome is especially disconcerting if we are worried about the court running interference for a president facing criminal indictment.
A 2015 Reuters survey found most Americans would support term limits.
Support for the 10-year term limit proposed by the poll was bipartisan, with 66 percent saying they favored such a change while 17 percent supported life tenure.
The two big rulings in June were widely welcomed by liberals. Nevertheless, 66 percent of Democrats, 74 percent of Republicans and 68 percent of independents said they favored the 10-year term limit idea, according to the poll.
Typically proponents of term limits recommend staggered terms of 10, 12 or 18 years.
Term limits for Supreme Court justices enjoy support from both sides of the aisle, including some justices themselves. Chief Justice John Roberts, then working as a lawyer for the White House counsel's office under Ronald Reagan, wrote in support of term limits in a 1983 memo. Per The New York Times:
"Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence," Mr. Roberts wrote. "It would also provide a more regular and greater degree of turnover among the judges."
While poll of average Americans shows near consensus on instating term limits, legal scholars are not as convinced. Stephen I. Vladeck and John C. Eastman, both law professors, argued passionately against the use of term limits in a March 2017 op-ed for The Dallas News. The pair argued, among other issues, that term limits would cause justices to temper their judgements in fear of repercussions in their post-Court careers.
...[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.
However as the country saw in 2016, there is nothing to insure the Senate will hear any nomination. The Washington Post reported nothing requires the Senate to act on nominations, an issue that would not be solved by instating term limits.
[I]t is also clear that politics has always played a role — and the Senate has set the rules to act as it wants. Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination. In periods of divided government, especially with elections looming, the Senate has chosen not to act — or to create circumstances under which the president’s nominee either withdrew or was not considered. Indeed, the patterns don’t suggest the Senate used procedures out of constitutional duty, out of deference for what the Constitution says or what previous Senates have done. Instead they used procedures based on the political circumstances of each confirmation.