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So You’re Still Not Convinced on Supreme Court Term Limits?

By Samuel Morse

The Constitution is explicit about Article III judges: they shall remain in office during “good behavior,” and their compensation may not be lessened during their continuance in office. These provisions were meant to ensure an independent judiciary and to provide for a system where federal judges would discharge their duties without regard to politics or appeasing the sitting president.

Though, even today, life tenure for Article III judges addresses the problems the Framers sought to solve, it is not absolutely required to achieve the same result. An 18-year term limit for Supreme Court justices does not frustrate, violate or otherwise impinge upon the values embodied in the Constitution.

The effort to enact term limits for justices is often met with the same refrain: something to the effect of “life tenure insulates the justices from political influence over their actions.” This was the very sentiment expressed last month by the ranking member of the Senate Judiciary Committee, Dianne Feinstein, in response to a constituent who asked her about term limits.

Sen. Feinstein is correct, but life tenure is not the only means by which to achieve this unquestionably desirable end. Any lengthy but finite term, during which justices could not be removed and their compensation could not be lessened, would mean justices would serve long past their appointing president, thus fortifying their political independence. Moreover, term limits would remove the arbitrariness by which seats on the high court become vacant and would have the collateral effect of reducing the partisanship of the confirmation process.

Far from prohibiting term limits for Supreme Court justices, Article III leaves that door ajar. It speaks only of a “continuance in office.” There is nothing in the text of the Constitution to suggest that the length of the “continuance in office” cannot be regulated by statute.

In Federalist 78, Alexander Hamilton addresses the problems that could result if judges were to “hold their offices by temporary commission.” Judges without permanency in office, Hamilton suggests, could not be expected to have that “inflexible and uniform [adherence] to the rights of the Constitution.” Essentially, if their time on the bench was limited, judges would concern themselves with considerations that in some way would dilute their fidelity to the laws and the Constitution.

This concern, however, is just as present in our current system. Article III judges may step down from the bench whenever they like and for whatever reasons they choose. Improper as it may be, a judge could decide cases in favor of three large corporations in the weeks before he leaves the bench, and subsequently purchase stock in those three companies – or get a seat on their boards – upon resigning his commission. (To alleviate these concerns, the Supreme Court could of course adopt a code of conduct that specifically address the improprieties one imagines may accompany term limits.)

“There is no liberty,” 18th century French philosopher Montesquieu wrote, “if the power of judging be not separated from the legislative and executive powers.” That remains true today. And yet, lengthy, finite terms would not have the effect of giving the elected branches influence over judges – it would merely regulate the time during which they could hold the highest office.

Finally, there is also the fact that “good behavior” is such an amorphous means by which to condition the tenure of federal judges. Not only is that standard highly subjective, but if the Framers intended to preclude any statutory term limits for federal judges, why would they not have said so in the Constitution?

The only enemy of an independent judiciary is judges whose service is contingent upon the appointing authorities’ continued satisfaction with their service. Term limits do not make judges and justices removable at the whim of the president or the Senate; rather, they bolster the legitimacy of the judiciary by ensuring our judges and justices are in tune with a changing society.

Most importantly, perhaps, term limits can counter the reality that issues of critical importance are now decided based on who outlives whom.

Samuel Morse is a 2L at University of Maryland Francis King Carey School of Law and is Fix the Court’s fall 2018 law clerk.

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