Saturday, December 17, 2016

SCOTUS Term Limits in the Next Congress

By Eric Segall and Guest Blogger Gabe Roth, Executive Director of Fix the Court

News that Ted Cruz is planning on introducing a constitutional amendment on congressional term limits next month has yet to stoke the interest or imagination of liberals and progressives. That is unfortunate yet eminently fixable.

Elsewhere in the Senate, Mitch McConnell’s strategy of not holding confirmation hearings for Merrick Garland paid off, and Donald Trump, who himself was not the majority leader’s first (or tenth) choice as the person to pick the next Supreme Court justice (or three), will nominate a new justice soon.

As long as the nominee is not a personal friend of the President (à la Abe Fortas or Harriet Miers), doesn’t show disdain for the hearings (Bork!), and has no secret drug-using past (D. Ginsburg), he or she is expected to be confirmed in February or March and may sit on the court for the next three or four decades.

Think about how much the world has changed in the last 30 or 40 years – and recall that while democracies the world over, along with 49 of our 50 states, set either a term limit, a mandatory retirement age or both in their courts of last resort, our federal courts system does not.

Thus, the Cruz bill, and a half dozen others like it that are weeks away from introduction, can and should become a vehicle for term-limiting the officials who need their tenures reduced even more than members of Congress: the justices of the U.S. Supreme Court.

Whether high court term limits could be achieved by statute or would require a constitutional amendment is up for debate, but either way, the action should begin in Congress.

Right now, our top jurists are serving for ages with almost no accountability. Even today, they ban broadcast media from their courtroom and choose for themselves if a potential conflict of interest disqualifies them from hearing a case. The eight (or nine) are not required to place information about their stock transactions, publicly financed travel and outside income online like elected officials, and they are not compelled to give reasons why they select the cases they take and reject the rest.

Then there’s unfortunate circumstance of what happens to our minds as we age: unpredictable, and often sudden, cognitive decline. The justices are not immune from it just because they wear black robes. In fact, of the high court justices who retired or died in office in the last 50 years, at least half were rumored to have experienced some decline in mental ability toward the end of their tenures. One was even barred from casting the tie-breaking vote in close cases due to his cognitive diminishment.

This is not how a governmental institution, court or otherwise, should behave or be staffed. Nor should it be that Donald Trump’s expected legacy extend by Supreme Court proxy decades beyond his tenure in office. If his first nominee serves to the same age as Justice John Paul Stevens, he or she may still be on the bench in 2057!

Liberals and progressives should rally around the idea of implementing term limits on Supreme Court justices. While the policy is favored by most of the country overall, conservative support typically outstrips liberal backing by 10 to 20 points. The specter of our new President nominating a cadre of justices who may collectively serve for 100 years should move liberals, and those who represent them in Washington, toward greater support – and then toward action.

Legal scholars on the left and right, from Harvard’s Larry Tribe to the Federalist Society’s Steve Calabresi, agree on this. So do a number of justices: before he became chief justice, Charles Evan Hughes favored a mandatory retirement age. The current chief, John Roberts, backed a 15-year limit for federal judges when he was serving as a Reagan administration attorney.

The last serious federal proposal aimed at limiting the justices’ tenure was introduced in 1954, three years after the 22nd Amendment restricting presidential terms was ratified. While more than 50 members of the House and a dozen senators – all but one of them Republicans – put their names on congressional term limits bills in the last few years, including previous versions of Cruz’s forthcoming bill, the Supreme Court has been nowhere to be found in those proposals. So far.

Now that we know these efforts will be resuscitated in January, Democrats should join in the drafting process. For all the reasons noted above, they should make their support of any term limits bill conditioned on the inclusion of a clause to end to life tenure at the Supreme Court.

After all, in a democracy, no one person – ever – should be handed such significant, largely unreviewable power for life.