Society

Term Limits Make Sense For An Out-Of-Touch Supreme Court

| by Nik Bonopartis
A 2010 group photo of the Supreme Court's justices.A 2010 group photo of the Supreme Court's justices.

With politicians who couldn't constrain themselves until after Antonin Scalia was buried to start bickering over his replacement, and observers using words like "political armageddon" to describe the brewing appointment battle, talk of term limits for justices has reignited in some quarters.

Is that such a bad thing?

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"The point of life tenure is to keep justices insulated from politics," Orin Kerr, a law professor at George Washington University, told NPR. "That didn't quite pan out."

The timing of Scalia's death makes things especially difficult; it's an election year. A lame duck president says the American legal system needs a new justice right away. His ideological opponents say voters should have a say over the next Supreme Court appointment, with the election serving as an informal referendum on the future direction of the court.

That has some former hard-liners reconsidering their views on imposing term limits for the land's highest court.

"My current cautious endorsement of this is based on the perception that the whole issue of appointments to the Supreme Court has become incredibly contentious, partisan, political -- almost to the point where the political system freezes up, as we're witnessing right now with the Scalia death," said Thomas Merrill, Columbia University law professor and former deputy U.S. solicitor general. "It would be a good thing not to have the type of armageddon it looks like we're about to have."

It's armageddon precisely because of the lifetime appointments. America's right and left know that when a president nominates a justice and Congress votes to appoint or reject, they're playing for all the chips.

The consequences of those decisions will ripple out over the decades, through innumerable cases and unforeseeable landmark decisions. Yet the appointments mostly come down to luck -- the timing in which a justice retires or dies, and which party happens to control the legislative and executive branches when that happens.

But ugly politics isn't the only reason to consider term limits.

The Supreme Court has proven itself remarkably ignorant when it comes to technology, and how new tech influences the lives of ordinary Americans. Justices have also been tone deaf and out of touch with regular Americans on issues like law enforcement and employment discrimination.

The Nation noted in 2012 that all nine justices on the Roberts Court -- including the late Scalia -- were graduates of two schools: Yale and Harvard. Only one justice, Anthony Kennedy, has served in a private practice. The rest have near-identical resumes, working as corporate counsel before embarking on long careers as judges.

And since 1971, the average retirement age of a Supreme Court justice has been about 79 years old, according to a study by the Harvard Journal of Law and Public Policy.

These are justices who can't program VCRs, let alone parse cases involving digital rights and complex technology. Their decisions show they're reliably obtuse when it comes to understanding the point of view of consumers against tech giants, or the subtleties of information privacy debates.

Just as troubling, they don't seem to understand the impacts their rulings can have, the unforeseen consequences that come when decisions are made without understanding technological nuance.

"Everyone who's anyone inside that courtroom is most likely an incompetent Luddite," Sarah Jeong, a recent Harvard Law School graduate, wrote in a blog post about the Supreme Court's handling of a TV start-up case.

This is, of course, a bigger issue in politics. The most famous example was the late Republican Sen. Ted Stevens of Alaska describing the Internet as "a series of tubes," and complaining that "an Internet was sent by my staff" and didn't arrive until the next day.

"Why?" Stevens asked. "Because it got tangled up with all these things going on the Internet commercially."

All of these issues make a convincing case for term limits.

Some have floated the idea of 18-year limits. Others say 10 years is a more reasonable number. Timeframes like that make the appointments feel less final, with less worry that a justice will sit in the court for half a century, handing down decisions based on anachronistic beliefs.

As Democrats and Republicans dig in for what will likely be a protracted battle over Scalia's replacement, it's time to give the term-limits idea some serious consideration.

Click here for the opposing view on this topic.

Sources: AP, NPR, The Nation, Reuters, ForbesThe Daily Signal / Photo credit: Wikimedia Commons