Term Limits: A Solution to a Politicized Supreme Court
Scholars of democracy often turn towards the courts to determine the level of democratic erosion within a country. Oftentimes, when a democratically elected executive takes power and begins to dismantle a democracy, he or she will fire judges so that they can be replaced with judges loyal to the executive. Other times, an executive may change the rules of the court to create a pathway to pack the court.
For example, before Hitler became Der Führer, he packed the judiciary with loyalists so that when his abuses of power were challenged in the courts, the judge would side with him. More recently, current Prime Minister Viktor Orbán of Hungary lowered the judicial retirement age so that he could remove the senior most judges and replace them with his supporters. This is why the Founders did not explicitly provide for Supreme Court term limits in the Constitution. They hoped to distance the judiciary from the executive, so that it would not be politicized. The Founders were concerned that term limits could create targeted opportunities for tyrants to fill the courts with judges who would not act independently.
It is not always the executive who manipulates the courts, however. Mitch McConnell broke precedent in 2016 when he refused to give Obama’s Supreme Court nominee, Merrick Garland, a hearing. It is no surprise that the Supreme Court appointment process has become increasingly political and controversial since then. Term limits for Supreme Court justices could help remediate that.
The highly politicized nature of the Supreme Court has led both conservative and liberal advocates to encourage Supreme Court term limits. Fix the Court has proposed 18-year term limits that give the president the power to appoint 1 Supreme Court justice every 2 years, or 2 per term. It would take 18 years for all 9 justice positions to be filled and for the cycle to restart. Fix the Court’s model provides that no justice who was appointed before the enactment of 18-year terms will be required to retire. Instead, for a period of time, there would be more than 9 justices on the bench until the justices appointed before the term limit enactment pass away or retire. In this model, the role of senior justice would be created and attributed to retired justices who finish their 18-year appointment. Should a vacancy open up on the Supreme Court due to death, removal of a justice, or early retirement, the retired justice who is the longest-serving senior justice would be assigned to serve on the Supreme Court until it is time for the president to appoint another justice.
Regularly scheduled Supreme Court appointments could help decrease the tension that comes with a Supreme Court nomination because it would be understood that the president is in charge of appointing two justices each term. This has the potential to help depoliticize the Supreme Court because it could help prevent future Mitch McConnells from blocking nomination hearings; everyone would know and expect the president to appoint two justices.
Additionally, regular Supreme Court appointments would help ensure that the Supreme Court is more representative of the population’s ideological lean. Excluding the instances in which a presidential candidate loses the popular vote but still wins an election, an American president’s victory can symbolize the population’s political lean. Therefore, if a president was guaranteed two Supreme Court appointments, the Supreme Court would likely be more representative of the public’s will.
Establishing Supreme Court term limits may not be as difficult as one may think. The Constitution does not explicitly grant lifetime justice appointments. Instead the Constitution establishes that justices “shall hold office during good behavior.” Last year, the House proposed legislation that would establish the proposed 18-year term limits with justices appointed every two years. However, nothing has been made of the bill since it was introduced last September.
This gives Americans the power to push for Supreme Court reform. We cannot allow more landmark decisions to be decided along predictable ideological lines. We must contact our legislators to let them know that we want Supreme Court Term limits. With 77% of Americans supporting them, it’s time that Congress listens.