Why Supreme Court Justices Should Not Have Term Limits

| by Nicholas Roberts
Supreme CourtSupreme Court

An idea that has been rejected time and time again, despite advocacy from both Democratic and Republican partisans, has resurfaced in the wake of Supreme Court Justice Antonin Scalia's death: term limits for Supreme Court justices.

It is exactly the fact that term limits are being so enthusiastically embraced by politicians of all stripes that makes it imperative to maintain the political independence of the court. Despite good theoretical arguments for term limits by astute legal scholars, the primary goal of modern politicians is to reduce the Supreme Court to a manageable entity controlled through the election cycle, as Jared Keller of Pacific Standard notes.

There are, to be sure, problems with life tenure that the Founding Fathers could have never foreseen. They could not have predicted the effect of modern medicine in increasing the longevity of justices serving on the court today, nor could they have predicted today's bitter partisan fight over who should replace Justice Scalia. They would most likely be horrified at the amount of politics injected into the nomination process.

One proposal is to subject justices to 18-year term limits, which would lead to two justices retiring during every presidential term. The hope is that such a system would lead to a "standardization" in the nomination process by subjecting it to the whims of presidents, and that this would somehow make the whole nomination process less contentious and bitter.

As David Harsanyi of The Federalist notes: Are we really going to buy this? Especially now, in 2016, when the chasm between the Democratic and Republican parties is possibly larger than at any point in our lifetimes?  Injecting more politics into a process already shaped by politics is going to lead to solution where Democrats and Republicans will find their party's nomination picks more palatable? This all sounds like fantasy.

It would be one thing if the impetus for term limits were coming from, say, a large and politically diverse group of legal scholars concerned about how life tenure as it is practiced in the Supreme Court today was not what the Founding Fathers actually intended the court to be. And indeed, there are some good arguments to this end which have been made in the past.

But politicians have picked up the ball and run with it, to the point that subjecting the Supreme Court to any further political pressures is likely to inflame the anger and passion of the losing party in a presidential election. It is most likely that 18-year term limits would lead to more partisan gridlock than anything else.

Fortunately, advocates of this position really have no plan on how to actually get there and craft a constitutional amendment enforcing term limits on the Supreme Court, as The Washington Post notes. Any kind of transition would be a bumpy legal ride, and politicians who seek to change the judiciary in this way have not identified any way to achieve this result.

So while there may be glaring problems with life tenure that were unthinkable in 1789, all of the supposed cures being offered are worse than the disease.

Click here for the opposing view on this topic.

Sources: Pacific Standard, The Federalist, The Washington Post / Photo credit: Wikimedia Commons

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