Just when there seems to be a growing consensus on a proposal to gradually implement term limits for US Supreme Court justices, a group of lawyers is advocating for a loophole that could prevent that reform from becoming a reality.
This week, the Presidential Commission on the Supreme Court — the panel created by President Biden in response to last year’s political debate over calls for court-packing — held its third hearing. During the open virtual session, as a wide array of reforms, from adding additional justices to the bench to imposing stricter ethical and financial disclosure standards, term limits emerged as the topic garnering the most interest and support.
This wasn’t entirely surprising. For years, ending lifetime tenure for the high court has been proposed by Democrats and Republicans alike, and has been supported by think tanks, advocacy organizations, and legal practitioners from across the ideological spectrum. After the recent politically explosive processes of filling — or blocking the ability to fill — recent vacancies that have only served to weaken Americans’ trust in the court, the prospect of a solution with conservative and progressive backing was, at the least, a positive development.
But then a group of Supreme Court practitioners, members of the Supreme Court bar who have collectively argued more than 400 cases before the court, threw in a curious caveat that threatens to derail reform efforts entirely. They say they support term limits, but think that check — or any other changes to the court — should be imposed only if the justices are the ones to impose it.
“Not only is the Court in the best position to evaluate the potential positive and negative effects of the proposals, but the separation of powers and respect for coordinate branches counsels strongly in favor of allowing the Court itself to determine whether and what changes would be salutatory,” the attorneys said in written testimony to the commission.
This, of course, is nonsensical. No branch of the federal government, not even the judiciary, operates only under its own rules. The Framers created those levers of checks and balances for a reason — to prevent any one branch from becoming too powerful.
“Congress can absolutely step in and say, these are institutional reforms that [the court] must undertake,” Gabe Roth, executive director of Fix the Court, said in an interview. The organization, which promotes reform in the federal courts, has proposed term limits imposed by congressional statute.
It is Congress, Roth said, that “tells the Supreme Court when it meets, how many justices it has, and all that. Congress makes all kinds of rules for other branches.”
And at a time when reforms are needed at the court not only to end the partisan blood sport that judicial appointments have become but also to bring greater transparency and accountability to the judiciary, this is one case where the justices should not be the ultimate deciders.
It’s worth noting that the testifying practitioner attorneys may have an interest in deferring to the justices when it comes to what reforms are put in place, and who should decide. Why take the risk of ruffling judicial feathers if it could be detrimental the next time one of them presents a case before the court?
But the stakes here are so much higher than any one particular case. And leaving the decision of the court’s fate in the hands of the justices themselves hasn’t worked out too well in recent years.
Justices Antonin Scalia and Ruth Bader Ginsburg both underestimated their own mortality. Their deaths created the vacancies that put Senate majority leader Mitch McConnell, who was laser-focused on confirming as many conservative federal judges as possible, in the position to bend every political lever at his disposal to shift the Supreme Court to the right.
Now Justice Stephen Breyer, who turns 83 next month, is also resisting repeated calls for his retirement from Democrats concerned about a potential GOP three-peat. Breyer told CNN that he is enjoying his senior liberal status on the bench.
That’s very nice. But, with all due respect, this isn’t about him. It’s about the future of the court. Those in power always believe they know best. History is replete with examples of that sort of miscalculation. And in this case, justice — not the justices — will pay for their hubris.