Post 3 of the Fixing the Constitution series, focusing on much-needed amendments to our founding document and how to enact them.
Yesterday it was reported that, during a virtual meeting with the Congressional Progressive Caucus, President Biden said his team has been working on a proposal to create term limits for Supreme Court justices. Whether through legislation, as Biden is seeming to propose, or as a constitutional amendment, term limits have the potential to help restore the battered reputation of the Court by ensuring it remains aligned with the values of American voters.
The Supreme Court has been making some momentous decisions lately, including striking down women’s right to abortion, making presidents immune from prosecution for crimes committed “in their official capacity”, and severely restricting the executive branch’s ability to create regulations, putting many environmental and labor rules in doubt. In addition, the Court may soon be put in a position of adjudicating the upcoming election, as Donald Trump again raises fears of electoral fraud.
This all comes at the same time that confidence in the court is at an historic low. According to a 2022 Gallup Poll, only 25% of those surveyed expressed “a great deal” or “quite a lot” of confidence in the Court. Recent revelations of ethically dubious behavior by Justices Clarence Thomas and Samuel Alito have only made the situation worse.
While the behavior of individual justices and the unpopularity of certain decisions certainly play a big role in the lack of confidence in the court, there is also the perception, I believe a correct one, that the constitution’s rules on the appointment and tenure of Supreme Court justices are illogical and has led to a court that does not represent the will of the American people.
According to the Constitution, Supreme Court justices are appointed by the president for life. Life-long tenure was instituted on the theory that it would insulate the court from the political passions of the moment and allow them to rule impartially based on the law alone. Unfortunately, this has created several negative side effects. One is that it allows justices to serve even when advanced age has eroded their judgment and ability to take in information, something I addressed in an earlier post on age limits for officeholders.
The more important problem is that the number of justices a president is allowed to appoint is completely arbitrary, which can create a court that does not reflect the will of the people. Our current court is just such an example. Of the current justices, one-term President George H.W. Bush appointed one member, while two-term President Bill Clinton appointed none. Two-term Presidents George W. Bush and Barack Obama each appointed two members, while one-term President Donald Trump appointed three. Democratic presidents, which have won 62.5% of elections since 1992, appointed only 33% of the justices. And, as I pointed out in an earlier post, Justices Gorsuch, Kavanagh and Comey Barrett were appointed by a president who lost the popular vote and approved by senators representing a minority of Americans.
Fortunately, the fix for this problem would be relatively simple and broadly popular. According to a 2022 Morning Consult/Politico Poll, 66% of Americans favor term limits for Supreme Court justices. Fixed terms could also allow for a more rational appointment process, giving presidents equal opportunity to choose justices.
Earlier today I discovered that the version of this reform that occurred to me a few months ago is exactly the same as one a politically diverse team of leading constitutional scholars worked out as part of the National Constitution Center’s Constitution Drafting Project in 2022. So either I’m as smart as those guys or this fix is pretty obvious to anyone who thinks about it. It would work like this:
One justice would be appointed during each two-year congressional term to an 18-year term. This term would be long enough to provide the independence that the Framers desired while being easily divisible by the nine justices. If a justice dies or resigns before their term is up, a replacement would be appointed to fill out the remaining part of their term. The transition from the current system would be made by rotating one justice off each congressional term by seniority (if you’re curious how this would specifically play out, I’ve outlined it here).
Under this system, every president would be allowed to appoint two justices during a four-year term. A regular schedule of appointments would also prevent gamesmanship by the Senate Majority leader, like when Mitch McConnell refused to schedule hearings for Merrick Garland in 2016 in order to deny President Obama an appointment, despite there still being nearly a year left in his term.
It’s hard to see any rational objections to this change. Republicans have most recently benefited from the current system, but this is pure coincidence. If a couple of justices had died or resigned a few years earlier or later, we could have an entirely liberal court with little or no Republican appointees. If Republicans win either of the next two presidential elections, they are likely to retain their majority for quite some time, barring an unexpected spate of deaths, resignations or impeachments.
It is unclear if President Biden’s backing of these reforms will ultimately help or hurt their chances, as we live in a time when Republicans are unlikely to embrace any initiative put forth by a Democratic president. Donald Trump has responded on social media in typical fashion by slamming Biden as “desperately trying to ‘Play the Ref’ by calling for an illegal and unConstitutional attack on our SACRED United States Supreme Court,” making reform even less likely, despite many regular Republicans approving of the idea of term limits in the abstract.
So as not to leave on that bummer note, I want to respond to some people who read my previous post and wanted to know more about how they could actually become involved in pushing for constitutional reform. Today I’ll highlight the American Constitution Society for Law and Policy, who call themselves “the nation’s foremost progressive legal organization”. Their work includes advocacy for Supreme Court reform. They have chapters for students and lawyers, but seemingly not for the rest of us. If you know of organizations I should highlight in future posts, please let me know.
And for further inspiration, here are a couple of historians who think that an age of constitutional reform may soon be upon us: Politico: History Teaches that Constitutional Reforms Come in Waves. We May Be Approaching One Now.
Read more fact and fiction about constitutions and social change at ChangeShapers.blog.