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.


Joe said...

I'd be open somewhat to a congressional term limit though wary of it for various reasons. A term limit (let's say 20 years, tinkering allowing including service in lower courts) for judges makes more sense to me given current life expectancy, the absence of circuit riding, presence of clerks that make the job easier etc.

If we are going to provide a constitutional amendment, some sort of other matter might be addressed too. For instance, more openness should be present, including televising and/or more audio/video of other events (opinion announcements etc.). To the degree allegedly this causes Art. III issues, this might be addressed somehow.

Likely academic. Anyway, congressional term limits is really low on my concerns, even in the sense of academic amendments. Electoral college, voting rights in various ways (e.g., Puerto Rico should have the right to vote for President), ending of the natural born citizenship rule (something Cruz might have been wary about too!) etc.

Neil H. Buchanan said...

"One was even barred from casting the tie-breaking vote in close cases due to his cognitive diminishment.". Unless I missed it, the linked op-ed by Garrow doesn't say anything about that point. I'd be interested to know who it was.

Brian King said...

Neil, I too think that's incorrect. There's no procedure I know of that could allow the other justices to bar or limit participation of another. It seems like I recall reading that Rehnquist when he was ill toward the end, limited his own participation to close cases where his vote would likely make a difference- but that was his own choice. I recall reading that after William O. Douglas had retired, in his dotage he tried to get himself back in the saddle to hear an important case, prompting the others to have to tell him in writing he was not authorized as he was retired. There again though, he had no more legal right than you or me to sit on a Supreme Court case.

Gabe Roth said...

It was Justice Douglas, and unfortunately in the editing process I put in the wrong link (which, of course, I can't find now). Gabe