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More Term Talk: The Expanding List of Articles, Columns and TV Shows That Favor Ending SCOTUS Life Tenure


In the Wake of Justice Scalia’s Death, Calls for SCOTUS Term Limits Grow Louder. Much Louder [2/13/16 – 2/25/16]

Everyone’s Talking Terms: The Case for Ending Life Tenure at SCOTUS Continues to Grow [6/27/18 – 8/15/18]

TODAY’S UPDATE [8/15/18 – 9/21/18]

Supreme Court Politics: Problems and Remedies [Cindy Jung, Harvard Political Review, 8/15/18]

Given the failed politics at the heart of bitter confirmation battles, meaningful reform of the Supreme Court may remain indefinitely implausible. Regardless, it is worth seriously contemplating more realistic, albeit far from fundamental, remedies to the judicial debacle. For example, changing term limits to less than 20 years would be a promising start to lowering the political stakes of judiciary selection, and thus better insulate the process from Republican or Democratic agendas. A commonly suggested model is a system of 18-year terms for Supreme Court justices with a new judge appointed every two years, which would give each president in a term two vacancies to fill.

SCOTUS Term Limits, Wave of Women, Wildfires  [Overtime with Bill Maher, 8/17/18]

Bill Maher: Should there be 18-year term limits for the Supreme Court? Some people have mentioned that. I would say yes. […]

Preet Bharara: I think there’s a reasonable case to be made for it. I think you want to have judicial independence, which the founders thought could be accomplished through having life tenure, but I think they also probably thought that over time the people on the Supreme Court would match the ideological proclivities of the party that was appointing them. But if you go back to 1968, in the last 50 years, and you count the nominees, there will have been 18 people appointed to the Supreme Court, 14 of them […] appointed by Republican presidents.

Charlie Sykes: You know where the Founders screwed up? They didn’t know that we would stop smoking. They didn’t think people would be living into their 80s and 90s.

3 reasons the Supreme Court needs term limits [Elijah Helton, Daily Iowan, 8/21/18]

First of all, there would be scheduled replacements on the court. Ginsburg wouldn’t painstakingly hold out for a Democratic president, and the opposite goes for the predicament that conservative Justice Clarence Thomas will have in about a decade. With an empty spot coming about every two years, all presidents would get their chances. […]

Additionally, there wouldn’t be instances of the Senate simply refusing to vote on replacement confirmations. Instead, everyone will know that a judge’s term is ending well in advance, and the president could have a nominee ready to go, filling the empty seat on the bench with as little delay as possible. Limited time would be an incentive for more experienced nominees and fairer court.

Term limits, retirement at 80 for Congress, Supreme Court [Peter Rosenstein, Washington Blade, 8/23/18]

Instead of lifetime appointments to the Supreme Court it might make sense to apply a 24-year limit on service. These limits would allow people to serve for what is generally considered a full generation. […] If we are serious about getting young people and a generation of millennials to vote it might be easier if we aren’t asking them to vote for candidates who are old enough to be their grandparents or great grandparents.

[…M]embers of the Supreme Court don’t have that heavy a load; we must question why they wouldn’t want to step off center stage and allow younger generations to take the reins of leadership. It can be assumed some of the reason involves ego, but that shouldn’t be enough to keep them there.

How Modern Medicine Has Changed the Supreme Court [Dr. Dhruv Khullar and Dr. Anupam Jena, New York Times, 8/31/18]

Two related health trends mean that each Supreme Court nomination now has the potential to shape the nation’s highest court for far longer than in the past.

One is that Americans live decades longer than they did when the country was founded. At the same time, medical and public health advances have changed the dominant causes of death from infectious to chronic diseases. Infectious diseases typically kill fast, while chronic ones have a longer course. This shift toward a longer and slower decline, as opposed to more rapid death, means that justices are more able to select the administrations and political environments in which to end their terms — to, in effect, pass the baton. […]

Supreme Court nominations have become increasingly rare. One recent analysis estimated that only 25 justices will be appointed in the coming 100 years, compared with 47 appointed in the last 100 years. That means the consequences of each nomination are growing larger and the political battles more heated. A justice experiencing mental decline may be more likely to stay on and retire during a presidential term in which a successor could carry on his or her legacy. […]

A president has an incentive to choose a younger nominee who can spend decades on the Court — “We have to pick one that’s going to be there for 40 years, 45 years,” President Trump said in June — another example of the way that age and health and the Supreme Court have become intertwined.

Neutral no more: Can the Supreme Court survive an era of extreme partisanship? [Peter Grier, Christian Science Monitor, 8/31/18]

Now the US may be in for a period when the court veers further to the right than the ideological position of a majority of US voters. That could last for a generation, and affect abortion rights, gun rights, affirmative action, and other hot-button issues.

Maybe term limits for justices would be a way to help ensure voter satisfaction with the Supreme Court’s direction, [Prof. Eric] Segall muses. “The notion that we would staff our highest court based on death and strategic retirement is insane,” he says. “Every other country has rotation systems.”

Holding the Court Accountable [Harvey Freedenberg interview with David Kaplan, author of The Most Dangerous Branch (which cites Fix the Court’s 18-year term limits proposal), Shelf Awareness, 9/4/18]

Is there anything that can be done to fix a Senate confirmation process you say is “broken?”

[…] I’d also endorse major changes in how we select justices – for example, enacting an 18-year term limit, with terms staggered so every president gets to appoint; or perhaps just staffing the Court with a rotating mix of chief judges chosen randomly from lower federal appeals courts. […]

In the book’s concluding chapter, you discuss some suggestions for reform, including term limits for Supreme Court justices. What would it take for such reforms to occur and what might be the source of pressure for them?

[…] The fundamental problem with life tenure for justices (and all federal judges) is that life expectancy now is so much longer than in the time of Jefferson and Madison. One well-known federal judge recently called the federal judiciary “the nation’s premier geriatric occupation” – and it wasn’t a compliment. Presidents today have a disproportionate incentive to name youthful justices who might serve 30 years or longer, thereby robbing the Supreme Court of an entire category of qualified nominees who are deemed to have passed their “sell-by” date. Once upon a time, an ambitious staff lawyer in the Reagan administration ardently argued for a 15-year term limit for federal judges. His name was John Roberts.

Supreme Court term limits [Last Week Tonight with John Oliver, 9/9/18]

John Oliver: Kavanaugh could be on the court for decades because it’s a lifetime appointment, and this might be a good time to ask why that is the case. It’s extremely unusual.

Georgia State Law Prof. Eric Segall: A lot of other countries follow our Supreme Court’s pattern of invalidating laws. None of them have life tenure. There is not a judge in the world in any democracy who sits on the highest court in their land and has life tenure.

Oliver: Exactly. Lifetime appointments to the highest court is one of those things that is uniquely American like the Super Bowl or drinking Budweiser or tolerating Sean Penn. […] If you think about it, it is a little weird. When the Constitution was written, life expectancy was much shorter and justices retired much younger. […] There are lots of proposals for how term limits could work. Under one, justices would serve 18-year terms, and they’d be spaced out so that each presidential term would be guaranteed two picks. That makes sense.

The partisans’ dilemma: fix the court, don’t pack the court [Matthew Seligman, The Hill, 9/10/18]

The irregularity of the Supreme Court appointments process has been a problem since the founding of the Republic. Allocating substantial power based on the vagaries of the timing of deaths and retirements is no way to run a constitutional democracy. And the best solution on offer has been around for decades: a term limit on Supreme Court Justices of 18 years, joined with fixing the number of Justices at 9 and a regularized schedule of appointments every 2 years.

The Supreme Court Is an Antidemocratic Hot Mess—and We Should Change That [Richard Kim, The Nation, 9/11/18]

With [their] naked, shameless judicial coup, however, Republicans may have awakened a slumbering beast. Why should any of us accept that an increasingly powerful branch of government is selected in such a manner?

[…T]here is nothing in the Constitution that requires the Court to have nine members. Why not 11 or 13? Justices could also be given term limits of, say, 18 years or selected by an impartial committee, as they are in other democracies. If the Senate Republicans have wholly abdicated their constitutional duty to vet Supreme Court nominees in full public view, then the people have every right to take that duty away from them.

America’s highest court needs term limits [The Economist, 9/15/18]

As Congress has grown incapable of passing laws involving even straightforward political trade-offs, power has flowed to the executive and judicial branches. Political questions best settled by the ballot box – about abortion, for instance, or gay marriage – have become legal ones settled by nine unelected judges.

Breaking this cycle requires reform. […] A more workable change would be to appoint justices for single 18-year terms – staggered, so that each president gets two appointments per term – rather than for life. Each presidential term would thus leave an equal mark on the court, and no single justice would remain on the bench for 30 or 40 years. New blood would make the court more vital and dynamic. A poll taken in July showed widespread bipartisan support for term limits. So long as former justices were prevented from standing for office, becoming lobbyists or lawyers after stepping down from the court, this would be an improvement.

Some fear that term limits would simply entrench the court’s political centrality by making it an issue in every election. But that bridge has already been crossed. “You have to vote for me,” Mr. Trump told a rally in 2016. “You know why? Supreme Court judges. Have no choice.”

What better way for Americans to start finding a path back towards civil politics than reminding themselves that bipartisan institutional reform remains possible?

How America’s Supreme Court became so politicised [Jon Fasman, The Economist, 9/15/18]

In the face of growing political rancour, calls for reform are getting louder. Perhaps the most widely canvassed idea is that justices should serve a single 18-year term rather than for life, with two new justices chosen each presidential term.

The Supreme Court Needs Term Limits [David Leonhardt, New York Times, 9/18/18]

No other major democracy has lifetime appointments to its highest court. Only the United States does, and it creates all kinds of problems.

For one, our system often does not respect the will of the people. Rather than the Supreme Court’s makeup being determined by elections over many years, it’s based on a combination of those elections and the randomness of how long justices live. […] “The policy future of the country,” Norm Ornstein of the American Enterprise Institute has written, “depends as much on the actuarial tables and the luck of the draw for presidents as it does on the larger trends in politics and society.”

This unfairness born of randomness isn’t the only problem. Given the deep partisan polarization in America, lifetime appointments have also turned confirmations into epic political battles. […] The most appealing idea to me is staggered 18-year terms on the court, with each four-year presidential term automatically bringing two appointments. […] Aging justices would no longer hang on to their jobs past the point when they should (which has been a real problem in the past). And as Ornstein notes, highly qualified candidates in their late 50s and early 60s — who are now largely ignored by presidents — would be considered for the court.

Should the Supreme Court Have Term Limits? [Josh Herman, Countable, 9/18/18]

What’s the solution? Many pundits propose term limits of about 18 to 20 years, which would mean each four-year presidential term automatically brings two appointments. “These limits would allow people to serve for what is generally considered a full generation,” Peter Rosenstein writes in the Washington Blade.

Why Do Supreme Court Justices Serve for Life? [Shaunacy Ferro, Mental Floss, 9/19/18]

There are few political appointments quite as important as a nomination to the U.S. Supreme Court. Unlike a cabinet secretary or an ambassador, justices serve for life. In the modern era, that often means more than three decades on the court—thanks to increased lifespans, justices appointed in the next century are expected to sit on the Supreme Court for an average of 35 years, compared to the average of around 16 years that judges served in the past. […]

While lifetime appointments may be a longstanding tradition in the U.S., this approach isn’t the norm in other countries. Most other democracies in the world have mandatory retirement ages if not hard-and-fast term limits for high court judges. UK Supreme Court justices face mandatory retirement at age 70 (or 75 if they were appointed before 1995), as do judges on Australia’s High Court. Canadian Supreme Court justices have a mandatory retirement age of 75, while the 31 justices of India’s Supreme Court must retire by the age of 65. […]

Though the U.S. Supreme Court has never had term limits before, there have recently been serious proposals to implement them. Term limits, advocates argue, could combat partisan imbalances on the court. Presidents wouldn’t get to appoint justices purely based on whether someone died while they were in office, and the stakes for political parties nominating a justice would be slightly lower, possibly leading presidents and Congress to compromise more on appointments. One popular suggestion among political analysts and scholars is to impose an 18-year term limit.

Should We Reform the Supreme Court? [Northwestern Law Dean Daniel Rodriguez, Planet Lex Podcast, 9/19/18]

Dean Rodriguez: Let’s begin with the argument for term limits […] of 18 years. What do you think of that? Would that solve the problems we’re talking about?

NU Law Prof. Tonja Jacobi: It solves the problem of individuals being on the court for an extremely long time. It solves of gamesmanship of wanting to appoint very young people such that they can serve, in the words of the president, for 40 or 45 years, which we haven’t seen yet, but it is conceivable. And I also think it solves the problem of [having] a handful of individuals who are often quite old and out of touch [decide] certain issues. If you hear the justices talk about technology issues, considering patent issues or even in criminal procedure, it’s a little scary how out of touch they are with modern technology and the implications that that has. […] And I don’t think that one person should not be so influential over literally decades and decades of time.

Lifetime Supreme Court Appointments Are a Total Disaster [Harry Cheadle, Vice, 9/20/18]

It’s not hyperbole to say that [the Kavanaugh confirmation] vote is one of the most consequential in recent decades—but the stakes shouldn’t be so high. There’s a simple way to shield the country from prolonged suffering under a bad Supreme Court justice and remove the incentive for confirmations to turn into apocalyptic tests of political will: We should stop letting Supreme Court justices sit on the bench until they die. […]

The benefits of this arrangement are obvious. Presidents wouldn’t be encouraged to pick the youngest candidates and would look for the best nominees regardless of age. Justices wouldn’t feel pressured to stay on the bench until they get a friendly president to nominate a replacement. It would also mean that the court would be somewhat more responsive to the country as a whole—if one party won a string of major electoral victories, it would make sense that that party should also get a chance to appoint more justices as well.

More Justices, Shorter Tenures: How to Make Supreme Court Nominations Less Partisan [Cornell Law Dean Eduardo Peñalver, Commonweal Magazine, 9/20/18]

There doesn’t seem to be any hope of de-escalating our wars over judicial nominees any time soon, but that doesn’t mean we shouldn’t try. There are a number of possible reforms that would at least make those wars less intense. […] First, we should consider term limits for Supreme Court justices. […] The average tenure of Justices before the 1960s was approximately 16 years. A 15-year term limit would restore the pattern that prevailed through much of our nation’s history.

Why are U.S. Supreme Court justices appointed for life? [Kevin Dickinson, Big Think, 9/20/18]

On his show Last Week Tonight, liberal-leaning comedian John Oliver argued that term limits are essential for democracy, as lifetime appointments come with a bevy of drawbacks. But it wasn’t long ago that Republicans could be heard issuing similar clarion calls.

“I just think that people—whether they’re in the legislative, executive, or judicial branch—shouldn’t see their appointment to an office as permanent,” Mike Huckabee told CNN during his 2015 run for the Republican nomination. “It would be that they have no accountability whatsoever.”

If there is bipartisan agreement that term limits can be problematic, then why do Supreme Court justices have a lifetime appointment?

With talk of Supreme Court term limits, why does changing the Constitution feel so … weird? [Christian Sagers, Deseret News, 9/21/18]

Limiting Supreme Court justices to, say, 18-year terms has some merit. […I]t would take the edge off of the political nature of appointments and the confirmation process. With staggered terms, every president would be guaranteed two appointments per term. Nice, right? No more lifetime appointments for a group of well-educated men and women who are accountable neither to the people nor to the president who appointed them. […]

What if changing the Constitution […] enhances freedom or lays the foundation for a better republic? No one can really know for sure. It was impossible for the Congress of 1866 to know the [implications of the] 14th Amendment […], yet here we are, forever changed as a nation because of it.

The greatest unknown happened 242 years ago when a fed-up Congress broke away from its motherland. It took on an ambiguous form 11 years later when delegates emerged from months of secret meetings with a brand new form of government. It has evermore been called the American Experiment, and so far as we know, it hasn’t ended.

Revisiting the Case For Term Limits at the Supreme Court [Wisconsin Public Radio, 9/21/18]

Coming soon…

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