Justice Ruth Bader Ginsburg understood, more than anyone else, the enormous consequences of her death. “My most fervent wish," she said, in a statement dictated to her granddaughter before she died, in her Washington, D.C., home, “is that I will not be replaced until a new president is installed.”
But barely hours after her death was announced, Senate majority leader Mitch McConnell said he would quickly move forward with a vote to fill Ginsburg’s seat with President’s Trump nominee, brazenly contradicting his own rule against installing Supreme Court justices in presidential election years.
It was unseemly, to say the least, that our collective mourning of Ginsburg’s extraordinary life and influential legacy was almost immediately eclipsed by the political implications of her death. But that’s what Supreme Court confirmations have become: another venue for the country’s poisonous partisanship.
And while a deeply divided Congress often winds up doing little, here so much hangs in the balance. A new conservative justice on the Supreme Court could mean the end of Roe v. Wade, the Affordable Care Act, climate pollution regulations, and other rights and protections for vulnerable populations.
How did the fate of such major, life-changing rights and rules come to rest on the health of a single person? And why have recent appointments of Supreme Court justices so frequently set off an intensely partisan, nasty, and destructive national fight? Part of the answer lies in the lifetime tenure of the nine Supreme Court justices.
When justices serve so long, the stakes of each appointment are too high. And when justices can time their retirements, the politicization of the court grows too acute; see all the calls for an aging Ginsburg to retire during Barack Obama’s presidency to guarantee the appointment of a left-leaning replacement.
One sensible way to lower the temperature on appointments, and preserve the legitimacy of the court, is to establish term limits for justices.
The idea of term limits for Supreme Court justices is not new or radical. It’s supported in both conservative and progressive quarters. The most talked-about plan involves staggered, regular appointments to 18-year terms. Each president would get two appointments per elected term, one every other year. In 1983, John Roberts, then an attorney working in Ronald Reagan’s White House counsel’s office, wrote a memo expressing support for term limits. “Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence,” wrote the future chief justice. “It would also provide a more regular and greater degree of turnover among the judges.”
Roberts was right. Term limits would not only depoliticize the highest court. They would put it more in touch with the crosscurrents of American life.
Term limits for Supreme Court justices are popular, too. Fix the Court, an advocacy organization that promotes reform in the federal courts, released a poll two years ago that showed nearly 80 percent of Americans are in favor of restrictions on length of service for SCOTUS. Yet another poll, conducted by Marquette Law School last year, showed that 72 percent of those polled supported term limits for Supreme Court justices.
The question of how to end lifetime tenure and set term limits is unsettled. Some legal scholars say the change must be enacted via a constitutional amendment, while others say Congress can do it through legislation as long as certain conditions are met. While the Constitution does not specifically grant lifetime tenure for justices, it does spell out that federal judges “shall hold their offices during good behaviour” and not have their compensation reduced. To comply with such language, a new statute setting judicial term limits could require that retiring justices — after serving for 18 years — sit on lower federal courts with no change to their salaries. Regardless of the vehicle, ending lifetime tenure for Supreme Court justices is an idea whose time has come.
The chaos to come over Trump’s pick for the court makes it abundantly clear that Americans deserve a better system that lowers the stakes. It would be a fitting tribute to Ginsburg’s legacy if her passing became a catalyst for reform of the Supreme Court.
Traditionally, Jewish people say “may their memory be a blessing” when someone passes. In recent years, some have offered up an alternative for pathbreakers like Ginsburg: “May their memory be a revolution.”
May her memory be a revolution, indeed — a reimagining of the highest court in the land.
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