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Bill to End Life Tenure at SCOTUS Takes on New Importance in Light of Shadow Docket Abortion Order

Term limits bill shows Congress isn’t afraid to impose constraints on a power-drunk court

For only the second time in U.S. history — and also the second time in the last year — lawmakers introduced a bill Tuesday that would require future Supreme Court justices to take senior status after 18 years and would ensure that each presidential term comes with two high court nominations.

Led again by Reps. Ro Khanna and Don Beyer, the unveiling of the Supreme Court Term Limits and Regular Appointments Act, H.R. 5140, follows countless legal scholars testifying in favor of an 18-year term before the Presidential Commission on the Supreme Court and Justice Stephen Breyer saying for at least the fourth time in the last five years that he’d be “fine” with a term limit.

The bill takes on new importance in light of Wednesday’s order in 21A24, Whole Women’s Health v. Jackson, which let a Texas law outlawing abortions before many women know they’re pregnant go into effect. FTC is calling on lawmakers who oppose the order on legal or procedural grounds to support the term limits bill in order to bring accountability to a court that is increasingly acting capriciously and spurning precedent.

“When the Supreme Court flexes its muscles in arbitrary ways, in the dead of night, with scant logic, Congress has a responsibility to flex back,” FTC’s Gabe Roth said. “Imposing term limits is an appropriate use of Congress’ constitutional powers to set the contours of the court’s structure and function, and it would send the message that our elected leaders will no longer accede to leaving the country’s most pressing policy issues to nine officials with no accountability.”

Roth added: “As an apolitical reform, Supreme Court term limits have the advantage of being able to garner broad-based, bipartisan support, which makes it more likely than other proposals to survive shifting political winds in both the short and long term.”

Poll after poll shows that large majorities of Americans of all ideologies would support a law ending the ability of nine unelected judges to rule over the public long past what the founders intended, past what’s reasonable in a democracy and past many jurists’ intellectual primes.

The text of the H.R. 5140 is essentially the same as last year’s version, though this year’s takes out the requirement that new justices be sworn in on Aug. 1 to allow for more flexibility.

The crux of the proposal gives presidents, in the first and third years of their term(s), the opportunity to appoint a justice, and it requires justices appointed after the enactment date to take senior status after 18 years — similar to the senior status that exists for federal judges on lower courts. Senior justices would be able to serve by designation on any other federal court for the rest of their lives, and they could rejoin the high court for a time should it find itself at less than full strength due to an unexpected vacancy.

Tenures of three decades would no longer be the norm, justices would not be incentivized to hang on for dear life until a same-party president sat in the Oval Office, and confirmation hearings would become more routine and less R-rated end-days spectacles.

The number of high-profile groups and individuals who support ending life tenure at SCOTUS is legion, and most of the justices who’ve served this century have, at the least, viewed an end to life tenure positively. Their quotes have been compiled at this link.

The Washington Post, L.A. Times and Boston Globe editorial boards all endorsed 18-year terms last year, and those who’ve supported an end to SCOTUS life tenure include ideological opposites like former Cabinet members Ben Carson and Eric Holder; former and future presidential candidates Ted Cruz and Beto O’Rourke; Rick Perry and Julian Castro; and Josh Hawley and Andrew Yang; as well as FedSoc co-founder Steve Calabresi and half of the ACS Board of Advisors.

“That this measure has been introduced in successive Congresses demonstrates both the seriousness of the life tenure problem — protracted terms plus outsized power and no accountability, and the intense partisan gamesmanship over every vacancy — and the commitment of the lead sponsors to fix it. I want to thank Reps. Khanna and Beyer for their leadership and foresight,” Roth concluded.

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