Judicial term limits are against both the letter and the spirit of the Constitution — Americans would be wise not to fall for them.
Judicial term limits are against both the letter and the spirit of the Constitution — Americans would be wise not to fall for them.
T he abortion debate has driven America mad. Or at least it’s made quite a mighty contribution. Since the leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health, the desperation on display from many on the left has been something to behold.
Exhibit A: the calls to set term limits for Supreme Court justices. Federal judges are permitted to serve essentially for life, during what the Constitution calls “good behavior.” According to Michael Hiltzik of the Los Angeles Times, however, that ought to change.
In making his case, Hiltzik discusses how the justices’ tenures have grown over time and how, consequently, the justices are now significantly older when they leave the bench. Based on these statistics, he suggests that the Founders didn’t expect the Court’s members to live — and thus, to serve — as long as they do now.
But Hiltzik’s real point is partisan. He thinks the present U.S. Supreme Court resides outside the American mainstream. In truth, what he’s driving at is the simple fact that the Supreme Court no longer votes reliably in favor of left-leaning policy outcomes. His description of the Court’s potential decision to overturn Roe provides an excellent example of this sleight of hand.
Hiltzik frames the potential scuttling of Roe as the Court’s “restricting abortion rights” while “public opinion . . . overwhelmingly favors access to abortion in some or all circumstances.” In his view, if it were to overturn Roe, the Court would be denying that a constitutional right to abortion exists. That decision, though, would simply return the issue to the states, leaving any laws governing abortion left to the elected branches of state governments. In other words, abortion access would depend on “public opinion” as expressed through the voting for elected officials and framing of state constitutional amendments. The Court thereby would be denying a one-size-fits-all approach to abortion and leaving states free to follow the opinion of the people as expressed in and through their state governments. That seems pretty mainstream to me.
Hiltzik’s focus on policy outcomes and partisanship means he spends little time addressing the substantive arguments made for judges serving during good behavior. He thus writes nothing of Alexander Hamilton’s argument in Federalist No. 78, the prime defense of judicial tenure at the time of the American Founding.
Indeed, rather than provide a fair mention and hearing of such arguments, Hiltzik dismisses them outright. He quotes current legal scholars who claim that no one takes such arguments seriously.
Were readers actually introduced to the counterargument, however, they likely would have found that the decision to arrange the judiciary in its present form was intentional — and for good reason. Hamilton described a judiciary that serves with life tenure under good behavior as “certainly one of the most valuable of the modern improvements in the practice of government.” The improvement had to do with the judiciary’s role within a government grounded in the rule of law.
The people are the ultimate legislator in American politics. The Constitution, the “supreme law of the land,” is the product of “We, the People.” That document places certain commitments at a higher level than typical policy issues. The people, in a democratic act, place certain priorities above and beyond the normal popular process.
Subordinate to them and their Constitution, the legislative and executive branches also participate in lawmaking: Congress writes the laws, and the executive signs or vetoes them. Because of this setup, the legislative and executive branches are and should be elected. They are and should, then, have a limit on each term of office before the elected representative must receive approval or rejection by the people.
Yet as they take no part in making the law, the courts do not have the same relationship with it as members of the legislative branch (or at least they shouldn’t). Instead, they only apply the law as written (something the chief executive does, too, alongside his limited legislative duties). This application applies both to the Constitution as supreme and other laws as subordinate. The concept of judicial review recognizes that we want the courts to respect our highest law when any other law conflicts with it.
Hamilton argued that we want, and judges serving with life tenure provide, “a steady, upright, and impartial administration of the laws.” We want the laws given in predictable and equal ways. But Hamilton also noted that a huge risk to this goal follows from electing judges — namely, public pressure. People may not always think right in the short term. They may have prejudices against a person under trial or one seeking justice. To be sure, history is rife with examples of public pressure causing congressmen and presidents to cave when their principles told them better. The same would undoubtedly befall judges if elected. With essentially life tenure, the justices — at least partially — are insulated from this pressure. They can discharge their duties and apply the law equally to popular and unpopular litigants.
While Hiltzik doesn’t call for electing judges — just limiting their time in office — Hamilton’s argument against the former sets up one of his own against limited tenure. Pressure still would exist in the form of knowing your end date. It would exist in perceiving, sometimes nearly four years in advance, which president will replace you. Moreover, Hiltzik’s arguments wish the Supreme Court to mirror popular opinion by having a justice replaced every two years or so. Yet we’re not looking for a mirror in the Court — we are looking for an anchor, one that will keep us moored to our commitments to the law, constitutional or otherwise.
Term limits also mean that we would limit the contributions excellent justices could make. Different people not only possess different capacities for logical thinking and writing. Those distinctions should say something about who gets on the Court in the first place. Once there, they maintain or lose these qualities at different points. We risk term-limiting out our best legal minds while they remain in their prime. Hamilton worried about this point as well, writing that becoming fit to serve as a judge took a peculiar set of talents and long-term training in the law.
Nor does Hiltzik give a convincing argument about how to impose term limits. He writes that the constitutionality of imposing a term limit on justices by statute was “open to question.” But it is not. It is blatantly unconstitutional. The term “good behavior” says what it means and means what it says. The judge may serve so long as he or she does nothing impeachable. Playing fast and loose with the text is exactly what we do not want justices — or anyone, for that matter — to be doing.
A strong judiciary, one that will not bend to momentary will, is exactly what we need at a time when arguing over abortion has caused much of the nation to take leave of its senses. We need a majority that stands for the law as written, regardless of public opinion, or at least until that public opinion officially acts by changing the law. Judicial term limits are against both the letter and the spirit of the Constitution — Americans would be wise not to fall for them.