In the wake of Justice Scalia’s death and the likelihood that his seat will remain vacant for some time, legal scholars, historians and politicos alike are joining Fix the Court in publicly calling for an end to life tenure at the Supreme Court.
Like Fix the Court, some scholars have suggested a legislative fix, whereby federal judges would continue serving for life, though only 18 years of that service may be on the high court.
Others have suggested a constitutional amendment that would essentially yield the same outcome or for the next nominee to the Supreme Court to pledge to serve for only a fixed amount of time, the latter of which is also a Fix the Court-backed proposal.
“The death of a 79 year old in poor health should not cause such a crisis, where a patchwork of inconsistent lower court rulings will remain intact following inevitable 4-4 ties in the months ahead,” Fix the Court executive director Gabe Roth said. “Instead, ending life tenure would yield predictability in vacancies, reduce the partisan temperature of nominations and ensure that individuals do not hold so powerful a position as Supreme Court justice for 30 or 35 years.”
Below are some of the calls for ending Supreme Court life tenure from news outlets across the country:
“Rethink life tenure” [Washington Post editorial, 2/21/16]
It is apparent that mechanisms the Constitution relied on to strike a balance between democratic accountability and judicial independence are failing, and that one of those mechanisms in particular – life tenure – is part of the problem. What’s left of the country’s political consensus is cracking under the pressure of a choice whose repercussions are widely viewed as both momentous and possibly irreversible for 30 or 40 years.
[…] A likelier way to lower the stakes, then, would be to fill Supreme Court vacancies not for a lifetime but for a finite term. […] Whatever the number, it should be significantly longer than either a Senate term or a presidential one. But if it were shorter than ‘indefinitely,’ the political drama over every vacancy would not be quite so fevered.
“After Scalia” [The Economist editorial, 2/20/16]
If judges are to have such power, they should not enjoy life tenure. Rather, they should be appointed for fixed terms, staggered so that a single president cannot pack the court. Under today’s rules, good nominees are routinely passed over if they are over 60, incumbents never retire while a president they oppose is in office and confirmation battles are needlessly ideological.
“A solution to confirmation gridlock?” [Ruth Marcus, Washington Post, 2/23/16]
There’s a way […] for Barack Obama to reduce the political temperature. He could take the advice proffered by a lawyer who would later become his White House counsel, Robert Bauer, and ask that his nominee pledge to serve a limited term. […] Perhaps the offer of a nominee to serve a reasonable term of years – Bauer suggested 15 – would dislodge the gridlock and pave the way for a more orderly, less acrimonious future.
“Fight over Scalia’s successor reignites Supreme Court term limit debate” [Henry Gass, Christian Science Monitor, 2/19/16]
Open-ended Supreme Court terms have only politicized the office more, critics say. With the prospect that a justice could serve – and vote a certain way – for 30 years or more, when a seat does open up the political stakes are that much higher. […] Advocates of term limits or mandatory retirement ages for the justices say such measures could reduce the politicization of the bench by lowering the stakes.
[…] Many state courts have mandatory retirement ages for judges – 32 states, according to the National Center for State Courts – and [Duke Law Prof. (emer.) Paul Carrington] says Congress could simply pass a similar law for the federal court system.
“Some want to limit justices to 18 years on Supreme Court” [Mark Sherman, Associated Press, 2/18/16]
Justice Antonin Scalia’s sudden death a month before his 80th birthday and the potential impasse over replacing him is giving new impetus to an old idea: Limiting the service of Supreme Court justices. […] ‘I think 30 years on the court is too long for anyone – liberal or conservative. That is just too much power in one person’s hands for too long a period,’ said Erwin Chemerinsky, a liberal legal scholar and dean of the law school at the University of California at Irvine. […]
The most talked-about idea has support among both liberals and conservatives. A single 18-year-term would replace lifetime tenure. Going forward, presidents would appoint a justice every two years, ensuring both continuity on the court and two picks for each presidential term.
“Justice Scalia’s death and the case for Supreme Court term limits” [Orin Kerr, Washington Post, 2/16/16]
Imagine each Justice was appointed to an 18-year term instead for life. With nine Justices, you would have a vacancy every two years. Every Presidential election would mean two vacancies at stake. […] The change would be hard to make, […] but I think the effort would be worth it. As you endure the coming showdown between the President and the Senate over the Scalia vacancy during the next few months, remember that it was avoidable. The problem is life tenure, and the answer is term limits for Supreme Court justices.
“How to fix the Supreme Court vacancy mess” [Harold Pollack, Politico, 2/15/16]
Eighteen years is a long enough for justices to take a long view that extends well beyond any one presidency. […] There’s less of a risk that a justice will become infirm on the job. Eighteen-year terms would allow presidents to confidently appoint senior jurists who are well into their fifties or sixties. These would prevent justices from imposing the ossified views of one generation on those born in a later and different time.
[…] Fixed terms provide no specific advantage to either party. And in the long run, neither party particularly benefits from a random political crisis of the sort we are now experiencing. […] American government depends to a remarkable extent on nine human beings, several of whom are well into their senior years. Justice Scalia’s actuarially predictable but sudden passing underscores the need to find a better way.
“Scalia’s Supreme Court seat and the next frontier in political hardball” [Emily Bazelon, New York Times, 2/13/16]
[A] year or more of a Supreme Court vacancy would expose the creaks in the joints of the Constitution. Maybe it is an argument for updating the 226-year-old document. If Supreme Court justices served 18-year terms instead of life tenure, their appointments could be staggered so that each president would get two. The process would be more predictable and more orderly.
“It’s time for term limits for Supreme Court justices” [Lee Drutman, Vox, 2/13/16]
Maybe there’s a bargain to be had in starting a new practice of justices serving limited terms, making these appointments both a little less consequential and also more predictable, thus potentially reducing the likelihood of what we’re about to face.
The idea of term limits for Supreme Court justices has been floating around for decades. But Scalia’s sudden death makes the case for it more compelling. [If] justices were staggered in their terms, everyone in Washington would know they’d have another opportunity to change the Court again soon enough. This regularity could also move toward more of a norm of fair play.
Longer and longer terms also mean that justices increasingly lose touch with the world outside the Court. This is a point that Justice John Roberts made in 1983: “Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence.” […] A more likely way to accomplish this is […] that the president agree not to nominate anybody who wouldn’t agree to serve a limited term and the Senate agree not to confirm who doesn’t agree to serve a limited term.
“Why it’s time to get serious about Supreme Court term limits” [Christopher Ingraham, Washington Post, 2/13/16]
With Justice Antonin Scalia’s death […], it’s worth asking why we don’t subject our high court justices to limited terms or mandatory retirement ages – like nearly every other country in the world.
For starters, are term limits even a good idea? A lot of sharp thinkers on both sides of the political aisle think so. Norm Ornstein […] says it would ‘would to some degree lower the temperature on confirmation battles by making the stakes a bit lower. And it would mean a Court that more accurately reflects the changes and judgments of the society.’ […] Republican presidential candidates Mike Huckabee, Ben Carson and Rand Paul have all endorsed [term limits]. Just last month, Justice Stephen Breyer said term limits were an idea he could get behind, provided the limits were sufficiently lengthy. […]