Supreme Court Should Still Not Have Term Limits

In the wake of Supreme Court Justice Antonin Scalia's death in February, I wrote that Supreme Court justices should not be subject to term limits. What I said then still holds true now: In today's hyper-partisan political environment, trying to introduce term limits would not only be impossible but an utter disaster in practice.

The idea of term limits has started to resurface again in the heated atmosphere surrounding the Republican Senate's decision to not hold a hearing for Merrick Garland, the D.C. District Court judge appointed by President Barack Obama to fill Scalia's seat.

On March 19, law professor Jamal Greene wrote in an op-ed for The New York Times, explaining an idea that has been popular with scholars and law professors on the left and right: an 18-year fixed Supreme Court term limit with vacancies regularized every 2 years. According to Greene, this change could alleviate some of the tension and controversy surrounding the appointments of Supreme Court justices.

Law professor Erwin Chemerinsky agrees with the basic idea, according to The Washington Post.

"Eighteen years is long enough to allow a justice to master the job, but not so long as to risk creating a court that reflects political choices from decades earlier," Chemerinsky wrote in 2013.

Others advocates for the change cite the fact that Supreme Court justices who live to be 80 or 90 years old will have more problems with mental competency than the Founding Fathers would have ever been able to imagine when they designed the structure of the Court.

"The Constitution was written at a time when life tenure meant living into your 50s because that's what life expectancy was," legal analyst Jeffrey Toobin noted, according to The Washington Post. "Thirty-year tenures are not what the framers had in mind."

And yet, it is that very document -- the Constitution, Article III -- which allows justices to "hold their offices during good behavior," which has typically been interpreted to mean for life. Changing the structure of the Supreme Court in the way these analysts describe would require a new Constitutional amendment, which would be an extremely difficult proposition given today's polarized political environment.

Beyond the logistical difficulties of the change, one must ask: Is there any evidence that an 18-year term limit for justices with regularized 2 year vacancies would not be subject to partisan political pressures if such an amendment were to pass?

It's much easier to hypothetically see the opposite happening: In a new system such as the one proposed, Supreme Court nominations would effectively be subject to the whims of the Executive branch and the partisan gap would continue to grow with each two-year vacancy.

With such a system in place, there is no reason to believe that the nomination contests would not be every bit as bitter, contested and ideological as they are now.  We would have simply institutionalized the partisan nature of Supreme Court nominations in a more predictable, routine manner, but adding predictability into the process is not suddenly going to make Senate Republicans consider Garland -- or any other Democratic President's candidate -- for the nomination.  

Partisan politics would rule above all else in this scenario; without term limits, there is at least the chance of working outside of these confines.

And ultimately, it is the same high degree of partisanship in American politics which prevents any viable plan for a Constitutional amendment on Supreme Court term limits in the first place. In an ironic twist, this partisanship is preventing the implementation of a system that would most likely further entrench that partisanship.  

Clearly, our system of government today has a lot of problems which the Founding Fathers would never have predicted. Let's not try to "fix" our judicial branch by consistently subjecting it to the polarized politics of the legislative and executive branches.

Click here for the opposing view on this topic.

Sources: The New York Times, The Washington Post / Photo Credit: Wikimedia Commons

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