Fix the Court's Work Reaches the White House
Following news that President Biden plans to announce his support for multiple Supreme Court reforms, Fix the Court’s Gabe Roth released this statement:
“I’m pleased to see that President Biden plans to weigh in on reform, and that he will do so on both structure (term limits) and conduct (ethics).
“The Court has long been the most powerful, least accountable part of our government, and you can’t ensure the long-term success of our democracy without implementing changes to our all-powerful and unaccountable juristocracy.
“The vast majority of the country, regardless of party, believes the justices should not serve for life but they should be subject to basic oversight like Congress and the executive are. After all, if the nine are going to write their policy preferences into their opinions — as they increasingly are, right and left — they should be constrained by the same guardrails that have been placed on the political branches.”
More info:
What U.S. senators (including then-Sen. Harris) have said on SCOTUS term limits: link
Background on SCOTUS term limits:
We could go back to proposals to limit the justices’ terms from the 18th century, but we’ll start in modern times.
Twenty years ago, a group of highly respected legal scholars, led by Duke’s Paul Carrington (a liberal) and Cornell’s Roger Cramton (a conservative), began planning a symposium on ending life tenure at the high court. The impetus: being in the second longest period in U.S. history with no turnover at the Court, and justices’ tenures going from 16 years per justice (1789-1969) to about 27 years (1970-present).
The two leading proposals event were an 18-year term limit with biennial appointments, written by Northwestern’s Steve Calabresi (FedSoc co-founder and newly a Trump fan) and Jim Lindgren, who favored an amendment, and a similar proposal by Carrington and Cramton that would be legislative, yet it wouldn’t take effect until after the most junior sitting justice left the court (i.e., a decade or two later, at least).
Ten years ago, Fix the Court was founded, and we didn’t include term limits as a “fix” since it was primarily favored in conservative circles, and we wanted all the fixes to have equal support on the left and the right. At the time, liberals criticized FTC for “trying to term-limit Hillary’s appointments.” Even so, we added the fix in 2015, during which conservative presidential candidates like Ted Cruz, Marco Rubio, Rand Paul, Ben Carson and Mike Huckabee called for SCOTUS term limits. Liberals were not on the scene.
FTC’s first formal legislative proposals came out in 2016 and 2017, and it’s been modified a few times over the years, but the contours are the same: a single, 18-year term for future justices, made biennially, so presidents get two picks per term. The current nine would serve out until they die or resign (Rep. Johnson’s and Sen. Whitehouse’s proposals push off the senior associate justice as soon as a new justice is confirmed, which we don’t think is constitutional). A former justice could be called back to SCOTUS for a couple of years should a term-limited justice die in, say, Year 15.
Rep. Khanna has introduced a version of this proposal in the last three Congresses. Fittingly, this time it has 18 cosponsors, and FTC has endorsed it. We believe it’s perfectly constitutional, and we were pleased to see that the bill was cited favorably in the Biden SCOTUS Commission Report. Justices Kagan and Breyer and Judge Wood have all supported 18-year SCOTUS term limits, among many others.
If FTC were to modify that bill, we’d take out the advice and consent expiration after 120 days, which is less than elegant; add Sen. Merkley’s bill to move SCOTUS nominations to the top of Senate business; and add an American Academy of Arts & Sciences proposal that would permit a president to make her two picks at the start of their term, with one justice joining the Court in the summer of Year 1 of the presidency and the other joining in Year 3.
Background on SCOTUS ethics:
Here’s a link to all the SCOTUS ethics bills introduced in Congress this session that have enforcement provisions.
