Conservatives distrust the liberal justices on the U.S. Supreme Court. Liberals distrust the conservative justices. Conservatives see the court as wielding too much influence over American life ever since liberals started using the court to achieve social change (e.g. abortion, same-sex marriage) after being frustrated in legislative venues. Liberals fear the current court could possibly overturn legal precedents they worked so hard to achieve via the judicial process.
And reasonable people of all political persuasions loathe the spectacle that confirmation hearings have become. The most recent proceedings involving Justice Brett Kavanaugh degenerated into a theater of smears and sexual assault allegations that in the end proved meritless. It reminded many of the Clarence Thomas confirmation hearings and cemented the widely held concern that conservative nominees will continue to be targets for such treatment.
Although a majority of Americans currently approve of the Supreme Court’s work, they do hope for a way to “fix” the court’s perceived ills, and they’re mostly supportive of the suggestion that establishing term limits for federal judges would provide a solution. But the favored remedy may not be the cure many hope for.
Opinion polls bear out the public’s interest in term limits for justices. A July 2018 Morning Consult poll revealed that 61% of voters supported term limits for Supreme Court Justices. Another, from Fix the Court, a group pushing for term limits, reported 78% of Americans either strongly or somewhat supported limits. A March 2019 Rasmussen poll concluded that most voters like the idea of term-limited justices.
The typical plan being discussed would require 18-year limits, with staggered terms so that a new justice is appointed (and one retires) every two years.
The “benefits” of such a plan, according to supporters include:
- It gives all presidents an equal opportunity to nominate justices
- It depoliticizes the confirmation process
- It ensures the Supreme Court is never too far out of step with the views of the public
But those are questionable goals, and the last one drastically so.
First, there is no persuasive argument in favor of the “equal opportunity” reason. How would it guarantee anything of benefit to the court?
Second, would it “depoliticize” the confirmation process at all? Where’s the evidence that it would? There is none—just the hope that by guaranteeing a new justice every two years, the fight over any single justice would be tempered by the knowledge that there would be another opening in two years.
But what if the exact opposite occurs? What if in employing term limits for justices, we are simply guaranteeing a confirmation circus every two years?
And third, why would we want a Supreme Court that is “never too far out of step with the views of the public?” That, arguably, is what we have now to a great extent. Perhaps a tad less now that Justice Kennedy has retired. The court is supposed to be independent, not beholden to Gallup.
What do the justices themselves think? Justice Breyer has indicated some support for term limits, arguing that it will prevent justices from playing politics by choosing to retire during the term of a president who might appoint someone with a similar judicial philosophy. Justice Kagan, on the other hand, worries that judicial independence might suffer if justices are concerned about their next job after exiting the court.
Would term limits end the confirmation wars? Fix the ideological differences at the court? Heal the cultural clashes that seem to erupt every year over cases being heard at the high court?
Some see politics in play in current calls for term limits, including at a recent Democratic presidential debate. The latest appointees to the high court, Justices Gorsuch and Kavanaugh, have caused many liberals to conclude that the court is moving too far to the right, jeopardizing precedents such as Roe.
Mike Berry, Chief of Staff at First Liberty, a public interest law firm dedicated to protecting religious freedom and free speech in America, dismisses the political motives behind recent calls for term limits.
“The Founders wisely recognized the need for an independent judiciary to act as a check and balance to the power of the executive and legislative branches,” said Berry in an email to The Daily Citizen. “That independence should never be threatened by fleeting political whims. The threat of Supreme Court term limits or court packing is a transparently political response by some who are simply not used to losing in courts they thought they controlled.”
There’s no solid evidence that term limits would solve any of those perceived ills anyway. The greater problem is that Congress and state legislatures have abdicated their responsibility to address complex social issues and are content to let the courts step in and take the heat. And courts should avoid addressing issues that are best left to the democratic process.
Don’t mess with the genius of the Founders. Term limits are a band-aid solution that won’t address the systemic problems that have led us to this point.
Photo credit: Fred Schilling, Collection of the Supreme Court of the United States