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New Proposal Bridges Gap Between Term Limits and Court Expansion, Charts New Course on Reform

Fix the Court today is releasing a new two-part statutory proposal that would end Supreme Court justices’ terms after 18 years and includes a “backup” provision on court expansion, so if the justices deem the term limits section unconstitutional, SCOTUS will automatically expand from nine to 13.

The proposal is based on what’s referred to as “backup law” or “contingent design” and hews closely to an idea discussed in a law review article and op-ed last year by legal scholar G. Michael Parsons.

“Rather than settling on one [court reform] plan,” Parsons writes, “Congress instead should use […] ‘backup law’ to layer its policy preferences from most politically desirable to most constitutionally secure. If the court holds the first preference unconstitutional, the second will automatically take its place.”

So it goes for the Fixing the Court Act of 2022: Section 1 (more politically desirable) is nearly identical to Rep. Ro Khanna’s Supreme Court Term Limits and Regular Appointments Act of 2021, with biennial appointments, though FTCA removes the current nine’s exemption from senior status after 18 years on SCOTUS. Section 1 of FTCA also includes language to consolidate challenges to the law and expedite review. Section 2 (more constitutionally secure), which only becomes operable should the justices strike down Section 1, is nearly identical to the Judiciary Act of 2021, introduced by Reps. Jerry Nadler, Hank Johnson and Monday Jones

“If it wasn’t already obvious that we need more democratic accountability in our most powerful, least accountable federal institution, the last few weeks have made that conclusion unavoidable,” FTC executive director Gabe Roth said. “The Fixing the Court Act of 2022 will ensure that citizens have regular, predictable input regarding who sits on the Supreme Court and will guarantee that our justices no longer function like philosopher-kings wielding unlimited power for a nearly unlimited amount of time.”

“And if the nine can’t handle the idea of term limits, they should get ready to welcome four new colleagues to the bench,” Roth added.

“This bill is exactly what America needs: a forceful and creative use of the powers the Constitution gives Congress to allow it to respond to an extremist and unbalanced Supreme Court,” University of Pennsylvania Carey Law School Professor and SCOTUS Commission member Kermit Roosevelt said.

“Court reform is ultimately a political question,” Columbia Law School Prof. and SCOTUS Commission member Olatunde Johnson said. “We are not going to see change without creative and urgent work from Congress.”

Georgetown University Law Center Visiting Prof. and SCOTUS Commission member Caroline Fredrickson said: “We face an urgent need as a nation to have a court that respects separation of powers and the importance of protecting, rather than undermining, our democratic system. Without significant reforms, this court will continue to abuse its power to override our fundamental rights.”

“The Supreme Court is rapidly losing the faith of the American people,” Program Affiliate Scholar at NYU School of Law G. Michael Parsons said. “The rule of law depends on broad, shared commitments and a public trust that must be constantly earned. Now is the time to act, and the layered approach to court reform can help build a coalition broad enough to take the kind of bold and principled action necessary to restore that trust.”

There is some debate as to whether Congress can impose term limits on the Supreme Court via statute. Many constitutional scholars (and Fix the Court) believe that Congress has the power to legislate senior status for SCOTUS after 18 years of service, after which the justices would remain life-tenured justices who’d hear cases on lower courts or possibly back on SCOTUS should there be an unplanned vacancy, or they could retire outright.

Other scholars say it doesn’t matter if the academy believes such a provision is constitutional; what matters is getting to five votes, and it’s unlikely that five justices would strike down a term limits law that, by the time the justices heard a challenge to it, would be incredibly popular, with majority support in the House, a minimum of 51 or 60 votes in the Senate and a presidential signature.

If the justices opted to strike down Section 1 of the FTCA, it’s at their own peril, as their power would soon be diluted by a significant percentage thanks to the “backup” court expansion provision. Plus, several justices have stated on and off the record over the years that 18 years is plenty of time to make one’s impact on American law as a member of the high court.

Contingent design already exists elsewhere in federal law and has been upheld by the Supreme Court. For example, when the Court in 1986 declared part of a section of the Gramm-Rudman-Hollings Deficit Reduction Act unconstitutional, it affirmed that the fallback provisions in that section were “fully operative as a law.”

It’s also worth noting that Supreme Court term limits has for years been, and remains (pp. 2, 9), a popular policy proposal, regardless of one’s ideology. Court expansion is less so, though some polling suggests its popularity is growing in light of several recent decisions that are at odds with the views of the majority of Americans.

FTC’s Roth concluded:

“Ted Cruz wrote in 2015: ‘The Court’s hubris and thirst for power have reached unprecedented levels. And that calls for meaningful action, lest Congress be guilty of acquiescing to this assault on the rule of law.’

“That sentiment is as true now as it’s ever been, with ‘power, not reason’ mattering more than statutory text, precedent, the rule of law or common sense.

“‘Meaningful action’ is what we seek, and the Fixing the Court Act is exactly that. Congress can no longer ignore its responsibilities at a time when, to quote Justice Scalia, ‘the Ruler of 320 million Americans coast-to-coast is a majority of the nine lawyers on the Supreme Court.’ That’s not what the founders intended. That’s not who we should leave the direction of the country up to.

“I look forward to hearings, markups and floor votes on this and other reform proposals shortly.”

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