At the Federalist Society’s annual lawyers convention, a panel discussion (above) on proposals for ending life tenure on the federal bench was held. One panelist, Norm Ornstein of the American Enterprise Institute, outlined a proposal for 18-year terms staggered every two years that reflects Fix the Court’s thinking as a way to reduce partisanship on the court, lower the temperature of Supreme Court confirmations and eliminate the randomness and uncertainty that plagues the current system.
Unfortunately, others on the panel maintained skepticism of the measure, in large part because they struggled to understand its basic tenets.
We thought we’d take this opportunity to rebut three of the major misconceptions brought up in during the panel.
Final period problem
Both Judge David Stras of the Eighth Circuit and the Judicial Crisis Network’s Carrie Severino expressed concern over the so-called “final period problem.” They believe that in the last years of an 18-year term, Supreme Court justices would make decisions with an eye to their professional future. In pursuit of a well-paid job outside the judiciary, or a future political appointment, they might stray from the impartial application of the law.
This argument falls flat because a term limits plan would not, in fact, exacerbate this problem. Justices and judges are already free to leave the judiciary for other jobs, which many have done. Further, our term limits proposal would allow justices to maintain their salary for life as senior justices and serve on lower courts by designation. They could certainly pursue other opportunities, but it would not be necessary for their professional or financial security.
Taking a step back, it is important to remember that Supreme Court justices have reached the pinnacle of the legal careers. It’s difficult to believe that many former justices would seek to return to private practice afterwards, and even if there’s a temptation, a law inducing a “cooling-off period” post-SCOTUS tenure could be passed.
There was also concern on the panel about the problem of “mini-terms,” which panelists imagined might result from a justice retiring early. They believed that an early retirement would result in an awkward situation in which a justice would be appointed for a shortened term or it could lead to a system in which a president would appoint more than two justices in a single presidential term.
This concern is rooted in a misunderstanding of our term limits bill. In the Fix the Court plan, after 18 years, justices become senior justices. In the event of an unscheduled vacancy, either from death or incapacity, senior justices can be called back into service to fill out the term. If no senior justices are available, the court would operate with eight members until the next nomination.
Thus, there would be no need to make an additional appointment to a short term and no incentive for a justice to retire early to give a certain president an additional pick.
Perhaps the most serious concern raised was that of constitutionality. Some panelists asserted that term limits would have to be instituted via constitutional amendment and that statutory proposals such as ours are unconstitutional.
Stras cited two concerns: he argued that the “good behavior” clause, which stipulates that justices hold their office “during good behavior,” is rightly understood from English common law as an appointment for life. He also argued that the offices of chief justice, justice and judge are each different, requiring a different appointment, which would complicate a statute rotating justices off the Supreme Court to lower courts.
Stras’ concerns simply do not apply to our proposal. Fix the Court advocates limiting justices to 18 years of service as active justices, after which they become senior justices. As senior justices, they would maintain the same office (i.e., “justice”) and compensation, but they would not hear cases unless called upon. They could choose to serve on a lower court by designation, which any of them could do now with approval from the chief justices, but regardless, they would not lose the office. Thus our proposal does not violate the “good behavior” clause, as justices can keep the office for life, nor does it require rotating of the sort Stras believes is unconstitutional.
For more information on the constitutionality of our proposal, read editorials by the University of Pennsylvania’s Professor Kermit Roosevelt and Ruth Helen-Vassilas or by Fix the Court’s Tyler Cooper.