Speaking Of Term Limits…

By  | 

Since we are re-considering the Constitutional Amendment on Presidential term limits, what about trading it in on one for Supreme Court term limits?

Without having to cry “judicial activism” I think most politically aware folks, regardless of party, can point to some court decision they don’t agree with and, in their view, calls into question the philosophy of one (or some) of the Justices. These questions may even be great enough to taint one’s faith in the Court.

The Supreme Court holds checks and balances over the Executive and the Legislative, and has the last word in interpreting the Constitution, after which there is no recourse for appeal. That isn’t necessarily problematic in-and-of itself; but in addition, we give this power to a small group who aren’t elected by the people and hold office for life without so much as a mandatory retirement age.

One proposal calls for a Constitutional Amendment that “…would limit Supreme Court justices to an 18-year term with one seat opening up every two years.”¹

Now I don’t see language in the Constitution that specifically indicates there should be no term limits for Justices, but the proposal contends that tradition mandates an Amendment…

..The Constitution specifically contemplates a separate office of Supreme Court justices, and it logically implies that that particular office must be held for life. For 216 years, Americans have so understood the constitutional text. We think that practice has thus settled the idea that Supreme Court justices currently serve for life. In our view, to change that practice a constitutional amendment is required. [ibid]

And the authors kindly provide the Donklephant Rationale: that the appointment/confirmation process should be less bitterly partisan and divisive…

[continuing directly] The current system of life tenure for justices leads to many abuses. Justices time their departures strategically to give presidents they like an appointment. To maximize their impact on the Court, presidents appoint young candidates to the Court in place of 60-year olds. We believe that Senate confirmations are more bitter because all involved know that they are picking someone who may end up serving 35 years instead of 18, making the stakes much higher in filling each vacancy. [ibid]

Does this proposal seem reasonable?

  1. Calabresi, Steven G. and Lindgren, James T., “TERM LIMITS FOR THE SUPREME COURT: Life Tenure Reconsidered” (April 7, 2005). http://ssrn.com/abstract=701121