Does a new interest in Supreme Court term limits spring from the controversy over Brett Kavanaugh’s nomination? That seems unlikely when reviewing the internals of the new Politico/Morning Consult poll, showing 61% of all respondents in favor of ending lifetime appointments at the top court. The consensus on this point seems surprisingly broad:
A majority of voters support term limits for Supreme Court justices – suggesting Americans don’t want the high court’s makeup to be permanent, as President Donald Trump attempts to get a second nominee confirmed this year. …
Sixty-one percent of voters support term limits for Supreme Court justices, including two-thirds of Democrats and 58 percent of Republicans. Twenty percent overall oppose such limits, according to the survey of 1,991 registered voters.
One can understand why Democrats would want term limits, at least at the moment. Their side of the court is older and getting more so, while the man naming the replacements for now is Donald Trump. He’s about to get his second nominee on the court, and he’s got at least two more years to go. Their eventual bitter defeat on Kavanaugh would go down a lot smoother if they knew he’d be gone in ten or fifteen years.
Why would Republicans want term limits, though? They’re about to lock in a conservative majority for another generation, possibly even a supermajority. Do they want that fight over and over again? There are two good reasons for this answer, though. First, Republicans remember what it was like when the liberal jurists were young and the conservatives grew old in the tooth. Second, conservatives are predisposed towards the concept of term limits anyway and mistrust lifetime appointments for their lack of accountability.
However, from a practical perspective, this seems tough to do, or at least to start. Can Congress create that by statute, or would it take a constitutional amendment? Article III Section 1 states that judges “shall hold their offices during good behaviour,” which has generally been interpreted to mean lifetime appointments with removal only for cause (via impeachment). Congress could write a statute limiting judicial terms, but such an effort would likely get challenged in court and settled by the Supreme Court. I’d take a very educated guess that textualists and the “living Constitution” justices alike would very quickly reach a unanimous consensus that such a statute would constitute an infringement on the independence of their co-equal branch. Call me crazy, but …
Let’s say for the sake of argument that 38 states would ratify such an amendment. What term would suffice, and would voters have a say in extending the term? Some states have regular elections for judges at all levels, either retention elections or actual competitive contests, such as Wisconsin’s supreme court elections. If elections are involved, how and when would those elections take place, given the irregular nature of appointments? For that matter, how long should the terms be — ten years? Fifteen? Twelve? Twenty? Cycle through justices too quickly, and you risk inserting a lot of instability into the interpretation of the law. Do it too slowly, and you risk missing the point.
Most of this misses the point anyway. The biggest problem with the Supreme Court is that it acts too often as a superlegislature, which makes it a political prize, and that outcome warps the power of people to set their own laws through representative structures. The real solution is to appoint jurists who stick to the text of the Constitution rather than search for “unenumerated rights.” That would push policy issues back to the legislature where they belong, and make judicial term limits a moot point.