Supreme Court Term Limits Could Reduce Gamesmanship, Shouting

The shouting that characterized the first presidential debate Sept. 29 was apt given how it all began: with a discussion about the U.S. Supreme Court.

Over the last four years, the process of appointing justices has been as politically wrought as any time in modern history. Hours after news of Justice Antonin Scalia’s death reached Washington, D.C., in February 2016, Majority Leader Mitch McConnell said that as leader of the Senate Republicans, he’d see to it that President Obama’s nominee would not get confirmed. Democrats were enraged. The now-infamous September 2018 hearing in which Brett Kavanaugh defended himself against accusations of sexual assault in high school? Again, more wrathful than substantive.

Verbal combat is to be expected in a democracy, but it does not befit the image we have of the Supreme Court or that the court has of itself. The court’s plaza is adorned with tortoises—symbolic of the measured, steady pace of the law—not stealth bombers or bulldozers.

This sad state of affairs cries out for change. Making matters worse is that a simple fix—a standardized appointment process—had for decades flowed through the halls of academia yet had hardly graced the halls of Congress.

That is, until now. On Sept. 29, Reps. Ro Khanna (D-Calif.), Don Beyer (D-Va.), and Joe Kennedy III (D-Mass.) introduced the Supreme Court Term Limits and Regular Appointments Act. If passed, future justices would serve 18 years (the current eight would be exempt), and retired justices would fill in from the time an unexpected vacancy occurred until a new justice was confirmed.

The key is that appointments would take place at regular intervals during non-election (i.e., odd-numbered) years. From the time a president appointed a justice, the next nominee would never be more than 24 months away. “No holds barred” would become “we’ll get ours shortly.”

The bill is constitutional because, among other reasons, the phrase “life tenure” never appears in the Constitution, and five justices would never agree to hear, let alone strike down, a law that impacts their very jobs.

A Confirmation Every Two Years? Can That Be Good for the Republic?

There are two reasons it would be good for the U.S. First, let’s say that instead of two appointments per presidential term, as this bill allows, there was only one. That would mean each future justice serves not 18 years, but 36 (nine justices times a four-year presidential term equals 36 years). If the 28 years justices serve today on average means too much power concentrated in the hands of too few individuals, then 36 years is far too long.

Second, some qualitative data. In early 2019 my organization, Fix the Court, convened focus groups around the country to talk about Supreme Court reform. The Kavanaugh hearings were fresh, so many folks spoke about them. But another event that had occurred less than two years prior was not once brought up organically: the confirmation hearings for Neil Gorsuch.

What do you remember about those? Maybe the “frozen trucker” case? Maybe nothing? The hearings occurred after Republicans held open a Supreme Court seat for a year. But there was no constant barking in the gallery or on cable news. That’s because for every confirmation hearing about P.J. and Squee, there are many more that are like Gorsuch’s: a tad prickly, but not to the point of embarrassment or farce.

Regular appointments with fixed terms would also ensure federal judges don’t lose touch with the 330 million people for whom they rule. At least that’s what Chief Justice John Roberts believed as an attorney in the Reagan White House when he wrote:
There is much to be said for changing life tenure to a term of years […]. A judge insulated from the normal currents of life for twenty-five or thirty years was [once] a rarity, but is becoming commonplace today. Setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges. Both developments would, in my view, be healthy ones.

By coincidence, the Khanna-Beyer-Kennedy term limits bill was introduced on the 15-year anniversary of Roberts’ confirmation. Though the chief justice is unlikely to retire any time soon, his points are even more salient today than when he wrote them in 1983, and this week has shown that a commonsense assist from Congress can help.

Leaving the court’s makeup to the actuarial tables is a choice. That choice is a mistake, and it keeps coming back to bite us, coarsening our discourse and politicizing our judiciary. But it’s a fixable mistake. We merely have to convince our elected officials that they have the power and the support to fix it.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Gabe Roth is executive director of Fix the Court, a national nonpartisan organization that advocates for greater transparency and accountability in the federal courts.