Credit: Fix the Dish.
On Friday, Democratic Representatives Ro Khanna, California, Don Beyer, Virginia, and Joe Kennedy III, Massachusetts tabled a bill that would give Supreme Court justices an 18-year term:
Democrats Ro Khanna, California, Don Beyer, Virginia, and Joe Kennedy III, Mass. Unveiled the law, term limits and regular Supreme Court appointments law on Friday. If passed, the law would initiate regular appointments to the Supreme Court every two years, with new judges serving for a non-renewable term of 18 years. After 18 years, the appointed persons would become "high-ranking judges" who could temporarily return to court in the event of an unexpected vacancy. Although the current eight judges would be exempt, the two-year appointment cycle would take effect immediately without waiting for them to retire.
For the reasons given here, I strongly support the idea of term limits for SCOTUS judges (see also Steve Calabresi's recent column in the NY Times in which they are defended). But legislating them is both unconstitutional and a dangerous precedent. Legal scholar Michael Ramsey has an excellent discussion of the constitutional issues on the originalism blog:
The consensus of legal scholars seems to be that this is unconstitutional when required by law. I would like to be a contrarian and say something else, but I can't. In fact, I think this is another example. where the text of the Constitution is clear when read carefully and with no prospect of circumvention.
Article III, paragraph 1 provides:
The judiciary in the United States rests with a Supreme Court and inferior courts that Congress may from time to time determine and establish. The judges, both the supreme and the subordinate courts, hold their positions during good behavior …
I am assuming here that the "good behavior" standard means that judges will serve for life unless they are charged and removed under Article II Section 4. As a starting point, a simple tenure for Supreme Court justices is a constitutional non-runner.
The Khanna et al. The proposal appears to attempt to circumvent this limitation by redefining the "office" of the Supreme Court for 18 years as a hearing process (I call it phase 1) and then serving as a substitute for "senior justice" for temporary vacancies (phase) 2 ). Moving from phase 1 to phase 2 would not be impeachment as the office by definition encompasses both phases of service.
This does not work for me. Article III, Section 1 creates "offices" of "judges … of the supreme and subordinate courts". Taking on the "office" of Supreme Court Judge inevitably means acting as a member of the Supreme Court in a judicial capacity, not just holding the title and occasionally filling it in. This constitutional office cannot be redefined by law when it comes to serving in a judicial capacity as a member of the Supreme Court for a period and then doing something else to balance one's tenure. (Otherwise, Congress could define the "office" of the Supreme Court as judges for 5 years and then dog trappers in East Outback, Alaska for the remainder of the time.) Article III, Section 1 goes on to state that judges should "do their jobs." "- that is, to hold their offices as members of the Supreme Court of Justice – if they behave well.
Ramsey's criticism implicitly highlights a possible negative consequence of assuming that Congress has the power to legally impose a term limit: if Congress can impose a term limit of 18 years, it can also set much shorter limits, such as: B. a five-year period or a two-year period. That would make it easy for any party that controls both Congress and the White House to get rid of judges whose decisions they dislike and replace them with more supportive lawyers. And if Congress can impose tenure limits on all judges, they can also selectively impose these on certain judges whom it particularly wants to get rid of, while the others are left alone. For example, if a Democratic Congress wanted to get rid of Gorsuch, Kavanaugh, or Amy Coney Barrett (assuming they are ratified), they could pass a law that imposes very short terms on judges appointed in 2017, 2018, and 2020. Republicans could use similar tactics to target liberal judges who might otherwise become thorns to them.
It can be argued that political norms prevent politicians from doing such things. But as we've all seen in recent years, norms can fray and even collapse in times of intense polarization. If you are a Democrat, would you really trust Republicans to follow norms on this issue if it becomes impractical for them to do so? If you are a Republican, would you trust the Democrats to do the same thing?
I am not suggesting that the khanna proposal itself is motivated by such partisan calculations. On the contrary, I think he and his co-sponsors are acting in good faith. One hint is that they are exempting current judges from the time limits, making it impossible to use the bill to get rid of the liberals currently opposed by liberal liberals. In theory, if the Khanna bill is passed before it is confirmed, Amy Coney Barrett could be subject to the maturity restrictions. In practice, however, such a scenario is highly unlikely.
However, once it is widely recognized that Congress has the power to impose term limits on Supreme Court justices through creative redefinition of office, that power can be used in less scrupulous ways. And such tactics should be attractive to politicians looking for a partisan advantage.
And most politicians aren't exactly known for adhering to generally uncomfortable norms. The recent history of Supreme Court nominations and other nomination battles shows that most are not even willing to adhere to the norm that they themselves adopted a few years ago. Democrats and Republicans have repeatedly had their own principles on issues such as whether the Senate should consider nominations for vacancies that arise during an election year, whether it is appropriate to filibusted judicial candidates, whether senators can legitimately reject candidates on ideological grounds, and soon. The GOP's egregious flip-flop regarding their positions in 2016 is just the latest in a long line of "hardball" tactics used in the ongoing political battle for the nomination of judicial officers.
Be sure to accept term limits for Supreme Court judges. But let's do it by changing the constitution. This is both the legally correct path and the path less likely to create a dangerous slippery slope.
I have criticized the legal time limits and the associated "rotation" proposals for Supreme Court judges in more detail here and here.