Murmurs of concern swept through Washington, D.C., Friday night as news broke that Supreme Court Justice Ruth Bader Ginsburg, a four-time cancer survivor, was back in the hospital.
Luckily, doctors said it was only because of chills and fever, and she went home Sunday. But Ginsburg’s health remains a topic of discussion in D.C. She missed a day of oral argument last week owing to stomach pain, less than three months after completing treatment for her fourth bout with cancer. She missed two weeks of oral argument earlier this year because of lung cancer surgery, and then in August endured three weeks of radiation treatment for pancreatic cancer.
Liberals live in a state of semi-panic that Ginsburg will leave the court and give President Trump the chance to name a third Supreme Court justice and put a conservative stamp on the body for a generation. Any Senate confirmation battle would be the mother of all political brawls, easily eclipsing the one last year surrounding Brett Kavanaugh.
It’s time to end the unseemly position that the anachronism of life tenure for Supreme Court justices has put the country in. It’s a good thing that modern medicine is extending the lives of everyone, including Supreme Court justices. But the time has come to remove the incentives that make justices serve until they drop dead or are gaga. It’s time to put term limits on the Supreme Court.
Our Founding Fathers granted life tenure to Supreme Court justices to ensure their independence. But that’s a relic of a day when the average life expectancy was 38. Today, it is more than twice that.
Now, Supreme Court justices can spend two generations on the bench. And, so long as they avoid impeachment, only they can decide when it’s time to leave. Judges today usually retire only when they can ensure a philosophically compatible successor. This can result in judges staying past their “sell by” date either physically or mentally. Examples in the past 50 years include Justices William O. Douglas and Thurgood Marshall.
Life tenure “is undemocratic by nature,” Gabe Roth, the executive director of the reform group Fix the Court, told The Atlantic magazine in 2015. “It sounds more like an oligarchy or a feudal system.”
Fix the Court has come up with a bipartisan proposal for 18-year term limits for the Supreme Court. A vacancy would come up every two years, meaning that every president would have at least two appointments in each term.
The proposal could be enacted without amending the Constitution. Article III, Section 1 states that “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.” This has been interpreted to mean that Supreme Court justices have a life tenure. But the Constitution is silent on what is meant by “Offices.” Nothing is said about judges remaining at their original posts for life.
So the Fix the Court plan would preserve the Constitution’s guarantee of tenure during “good Behavior” by having departing Supreme Court justices serve on one of the nation’s eleven appeals courts.
Naturally, some younger justices would opt out of continued judicial service and return to the private sector. For them ethics regulations would have to be crafted to protect against conflicts of interest. Retired judges might be barred from working for corporations or other entities that were a part of any case they had heard while they were on the Supreme Court.
As with the existing term limit for the president and the idea of term limits for Congress, the notion of pumping fresh judicial blood into the current system is popular with the public. A 2018 Morning Consult poll found that 61 percent of registered voters favored Supreme Court term limits (67 percent of Democrats and 58 percent of Republicans).
Chief Justice John Roberts (appointed by George W. Bush) and Justice Stephen Breyer (appointed by Bill Clinton) have both indicated support for the idea. In a 1983 memo written when he served in the Reagan White House, Roberts wrote: “Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence.”
Sadly, one hoped-for benefit of an 18-year nonrenewable Supreme Court term might not materialize in practice. In theory, an orderly changing of the guard on the Supreme Court should turn down the temperature of our current heated confirmation battles. The stakes, the theory goes, wouldn’t be as great if every senator knew that the justice they were voting on could serve a maximum of 18 years.
But the real reason confirmations are such brutal battles is that the Supreme Court plays too large a role in our society, as more and more issues fall under the scope of the Court. As the conservative Federalist Society recently noted:
The abundance of judges who do not view themselves as limited by constitutional or statutory text also drives the politicization of the confirmation process. By adding to the content of laws, they are acting as politicians rather than judges, and should expect a political selection process to match.
Returning our courts to their proper place in our constitutional framework is a tall order, and not one to be solved by abandoning life tenure for Supreme Court justices. But the idea is a sensible step, enjoys support from both conservative and liberal legal scholars, and just might give Congress the opportunity to prove to the American people that it’s still capable of bipartisan action.