Arguments against 18 year term limits for the Supreme Court
Introduction
After Justice Brett Kavanaugh’s contentious Supreme Court confirmation, there were numerous cries among politicians and commentators for the need to “lower the temperature” around the Supreme Court. The pleas were apt. Justice Kavanaugh’s confirmation was unprecedented for its media attention and the partisan divide it created among politicos and the public. For weeks, front-page articles in the nation’s leading newspapers and online journals covered the daily ins and outs of Senate procedure, feisty tweets and dueling press releases, and the political rage brewing around the Capitol. The public was also sharply divided. Days before the final vote, public polling indicated that 88 percent of Republicans supported his confirmation, while 83 percent of Democrats did not.
There are many alleged reasons for such rancor. Some believe it was the result of ever-escalating partisan judicial confirmations. In support, they cite the nearly unanimous votes for Justices Antonin Scalia and Ruth Bader Ginsberg—compared
to the recent party-line votes for Justices Neil Gorsuch and Brett Kavanaugh. Others claim the political hostilities during Justice Kavanaugh’s confirmation were more likely in response to fears that he would be a much more conservative jurist than his predecessor, Justice Anthony Kennedy and thus would solidify the court’s 5-4 conservative bloc.
Irrespective of the reasons, many across the ideological spectrum have looked to various reforms that could lower the political tensions around future confirmations. In addition to reforming the confirmation process via amending Senate rules, a number have looked to reforming the court itself. From a review of recent commentary and scholarly articles, one of the most prevalent reforms offered is the implementation of 18-year term limits for Supreme Court Justices.
The suggestion of 18-year term limits is not new. Variations of the same proposal have been flouted by scholars and commentators for over 30 years. And although each presents their own perspective to the debate, proponents nevertheless agree that term limits offer numerous advantages to the Constitution’s current guarantee of life tenure “during good behavior.”
The most claimed advantage of 18-year, staggered term limits is that it results in an open court seat every two years—promising two vacancies each presidential term. The benefits, proponents allege, are numerous, including that it will “eliminate occasional hot spots of multiple vacancies” and over time, decrease the political temperature surrounding judicial confirmations. Further purported advantages include fewer politically strategic retirements, greater incentives to nominate senior and established nominees and more opportunity to add greater diversity to the Court
But term limits will not achieve the goals its proponents intend. There are several reasons why. First, term limits do not promise presidents an equal opportunity to appoint justices. Even with terms, vacancies will often remain random. Indeed, justices will not always complete their set terms and the term limits do nothing to prevent Senate machinations, such as purposefully delaying a confirmation vote. Second, term limits would do little to decrease the politicization of the Supreme Court. On the contrary, it would do the opposite by inextricably tying the fate of the Supreme Court to every partisan election. Third, term limits would offer justices
unprecedented post-judicial opportunities, creating numerous conflicts of interest for the Court and increasing public cynicism toward the judiciary. Finally, the actual benefits of term limits—like the opportunity for a more-diverse judiciary—are greatly outweighed by its negatives, which should be fatal to its implementation.
Press release – This week in bad ideas: 18-year term limits for Supreme Court justices
Image credit: Steven Frame
