The Morning Jolt

Politics & Policy

Limited Judgement

The U.S. Supreme Court building in Washington, D.C., April 15, 2020 (Jonathan Ernst/Reuters)

On the menu today: a long look at whether the country would be better off if Supreme Court justices were limited to 18 years on the highest court, a new survey shows the public turning away from the protesters, and a tweet from the New York Times reveals some remarkable skepticism.

Does the Supreme Court Need Term Limits?

After John Paul Stevens served 35 years on the Supreme Court, Ruth Bader Ginsburg served for 27 years, and as Stephen Breyer is finishing up his 26th year, Democrats have concluded it is time to limit Supreme Court justices to 18 years on the bench:

Democrats in of the House of Representatives will introduce a bill next week to limit the tenure of U.S. Supreme Court justices to 18 years from current lifetime appointments, in a bid to reduce partisan warring over vacancies and preserve the court’s legitimacy.

The new bill, seen by Reuters, would allow every president to nominate two justices per four-year term and comes amid heightened political tensions as Republican President Donald Trump prepares to announce his third pick for the Supreme Court after the death on Sept. 18 of Justice Ruth Bader Ginsburg, with just 40 days to go until the Nov. 3 election.

That “only two nominations per term” provision just isn’t realistic. What happens if there are more than three vacancies within one four-year term? If two justices retire early in a presidential term, are all the remaining justices required to remain alive for the remainder of the term? Do the empty seats remain empty until the end of the term? More than two vacancies per presidential term is rare, but it can happen. Richard Nixon appointed Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist in a window from May 1969 to October 1971. God forbid there’s some terrorist attack, natural disaster, or some terrible elephant-riding accident that prematurely ends the life of more than one justice all at once.

“It would save the country a lot of agony and help lower the temperature over fights for the court that go to the fault lines of cultural issues and is one of the primary things tearing at our social fabric,” said California U.S. Representative Ro Khanna, who plans to introduce the legislation on Tuesday, along with Representatives Joe Kennedy III of Massachusetts and Don Beyer of Virginia.

Wait, why is it that once the court could go 6–3 in favor of strict-constructionist originalist “conservative” judges that we see this concern over lowering the temperature over fights for the Court? Why is there talk about the “fault lines of cultural issues” and “tearing at our social fabric” now, and not, say, after Roe v. Wade? Or Planned Parenthood v. Casey? Or Obergefell vs. Hodges*? I guess the legitimacy of the court is never at risk when it’s ruling in your favor.

In case you’re wondering about other recent Supreme Court justices, Antonin Scalia served 30 years, Clarence Thomas is in his 29th year, Sandra Day O’Connor served 25 years, David Souter served 19 years, John Roberts and Samuel Alito are both at around 15 years, Sonia Sotomayor is in her eleventh, Elena Kagan has served about a decade, Neil Gorsuch is at three years, and Kavanaugh is almost at two years.

There are some of us at NR who are fans of this idea. A few days ago, John Fund wrote:

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.

I think Ilya Shapiro, who has a new book out on the topic, diagnoses the core of the problem accurately: If we could build a bipartisan consensus on term limits instead of lifetime appointments, we could probably build a bipartisan consensus on most of the other issues that have us so divided.

A set 18-year-term wouldn’t make Republican senators any more eager to support a Democratic president’s nomination, and vice versa. It might create an even greater incentive to keep a vacancy open until the following presidential election, if senators knew that in addition to the current opening, another justice was approaching the end of his term.

Shapiro points out term limits couldn’t apply to the current justices, who were sworn into their positions without any limitations. If term limits were enacted, for a pretty long stretch, the newer Supreme Court justices would be serving under term limits and the older ones wouldn’t.

It’s easy to see why people are increasingly irritated with lifetime appointments. No other job in government includes that.

Why do people who are interested in politics and government become so passionate about who is on the Supreme Court? Because the Court is worth it. The Court isn’t supposed to be a super-legislature that can elbow aside the other branches of government, but the Constitution does give it the final say. If you have five justices who feel strongly enough about what the law ought to be, all they need is a case to hear to set the precedent. Everybody else in government has to face the voters in one form or fashion or another, and everybody else can get voted out of office for making a decision that enough people oppose.

But we also want the Supreme Court to be empowered to do what is right, regardless of whether it is popular. As my colleague Kevin Williamson once put it succinctly, “All of the best things about our Constitution are the anti-democratic stuff like the Bill of Rights, which is America’s great big list of stuff you idiots don’t get to vote on. If we had put slavery up to a vote in 1860, it’d have won, it’d have won 70 to 30. If we put free speech up to a vote today it’d probably lose.”

We want a branch of government that is independent from the whims of popular opinion and empowered to overrule the potential tyranny of the majority. But once you tell someone, “do what you think is right and just and consistent with our Founding documents, regardless of whether the majority of the public agrees,” they’re going to go do just that.

Daniel Hemel offers an unusual idea in the opposite direction: Keep justices off the bench until the president who nominated them is out of office.

Instead of limiting the terms of the justices, we should delay their start dates. The sitting president still would appoint a justice to fill a vacancy, but the new justice’s term would begin when the sitting president leaves the White House. Thus, Justices Sonia Sotomayor and Elena Kagan would have taken their seats on Jan. 20, 2017 (when Obama left office), and Gorsuch would take his seat on Jan. 20, 2021 (or whenever Trump vacates office). No private citizen gets to choose the judge in her own case, and the president—whose administration is the court’s most frequent litigant—should not get to do the same.

*By the way, why is that case usually referred to as just Obergefell or “the Obergefell decision”? Who decided to drop Hodges? It reminds me of the old joke about the Gramm-Rudman-Hollings Balanced Budget Act, which was supposed to cut spending and quickly became referred to as “Gramm-Rudman.” In the end, the only thing that the legislation cut was Hollings.)

More Americans Now Disapprove of the Ongoing Protests Than Approve

The signs of danger are there for the Black Lives Matter movement and the movement’s allies. The question is whether they are willing to recognize the violence, riots, and chants of “we hope they die” alienating potential allies:

As the decision in Kentucky to bring charges against only one of three police officers involved in the raid that killed Breonna Taylor sparks renewed protests nationwide, a new survey finds support has fallen for demonstrations against systemic racism.

The poll from The Associated Press-NORC Center for Public Affairs Research finds that 44% of Americans disapprove of protests in response to police violence against Black Americans, while 39% approve. In June, 54% approved. The new survey was conducted Sept. 11-14, before Wednesday’s announcement that a lone Louisville police officer would be charged in the Taylor case, but not for her actual death.

In three months, support dropped from 54 percent to 39 percent. But hey, maybe the survey oversampled Kenosha and Lancaster.

Boy, the New York Times Can Be Wary and Cautious When It Wants to Be!

At 7:04 a.m. this morning, the New York Times tweeted: “Breaking News: Four people were stabbed near Charlie Hebdo’s former offices in Paris. It’s unclear whether the assault is linked to the 2015 attack on the newspaper.” (French authorities later revised the number of victims to two.)

Could you ever imagine the Times writing, “Four people shot near an abortion clinic; it is unclear whether the assault is linked to opponents of abortion rights”?

As of this writing, the assailant was described as carrying a meat cleaver, and a suspect has been arrested but not named. But hey, maybe it’s completely unrelated to Charlie Hebdo.

ADDENDUM: Who says they don’t make blockbusters anymore? Congressman Dan Crenshaw stars in an ad for several Texas GOP House candidates that parodies the stunt-heavy Mission: Impossible movies. You just don’t see nearly as many campaign commercials featuring skydiving.

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