Editorial by Elad Hakim |
West Virginia Sen. Joe Manchin and Vermont Sen. Peter Welch want to institute term limits for future Supreme Court justices by way of a constitutional amendment.
Not only is this unlikely to happen, but it is also a bad idea.
As reported by Fox News, referencing a Manchin press release on the issue:
“The proposed amendment would not adjust the tenure of sitting Justices, but rather institute a transition period to maintain regular vacancies as current Justices retire. During that period, 18-year terms will begin every two years, regardless of when a current Justice leaves the bench. Once a current Justice retires, the newly appointed Justice will serve out the remainder of the next open 18-year term. The amendment would not change the overall number of Justices on the Court.”
From a legal and constitutional perspective, a change of this nature is highly unlikely to succeed because Article III of the Constitution states that justices “shall hold their offices during good behavior,” which has been interpreted to mean a lifetime appointment. Therefore, implementing a change of this nature would require a constitutional amendment, a very arduous process that is all but certain to fail.
Imposing term limits on future Supreme Court justices would also not “fix” some of the alleged problems raised by those advocating for an amendment of this nature.
For example, in the press release, Welch stated, “Taking action to restore public trust in our nation’s most powerful Court is as urgent as it is necessary. Setting term limits for Supreme Court Justices will cut down on political gamesmanship, and is commonsense reform supported by a majority of Americans.”
According to The Hill, Manchin further stated:
“The current lifetime appointment structure is broken and fuels polarizing confirmation battles and political posturing that has eroded public confidence in the highest court in our land.
Our amendment maintains that there shall never be more than nine Justices and would gradually create regular vacancies on the Court, allowing the President to appoint a new Justice every two years with the advice and consent of the United States Senate.”
It is difficult to ascertain how the proposed changes will cut down on political gamesmanship. To the contrary, such changes will encourage more gamesmanship because a justice would be introduced every two years and the Supreme Court would have an entirely new makeup every 18 years, thereby making the process more political and jeopardizing the stability of various legal doctrines and precedent.
Also, replacing justices every two years would jeopardize judicial independence, which is exactly what lifetime terms facilitate. This independence allows each justice to rule how he or she sees fit without the possibility of losing his or her job and worrying about external political influences. If a justice faces the prospect of losing her or her job after a certain number of years, this could influence the way the justice rules in one or more of the precedent-setting cases the court decides.
Moreover, judging from how previous Supreme Court nominees have been treated, including Justice Brett Kavanaugh, there is no reason to believe that the confirmation process would be any less political or contentious. To the contrary, the proposed changes would result in more frequent confirmation hearings, which would result in more political gamesmanship and additional contentious hearings.
It would also not make the Supreme Court “less politicized,” as some claim, because the sitting president would still likely nominate someone who aligns with his or her party and political philosophy/ideology.
The main motivating factor behind this push is the fact that some people simply disagree with how the majority of the Supreme Court has ruled in various cases. It is safe to assume that many Democrats, for example, would be perfectly fine if the Supreme Court consisted of nine liberal justices who consistently ruled in a way that Democrats agreed with. The same line of thinking applies to Republicans, though to a lesser degree, as Republicans have not threatened to pack the court or impeach various justices because they did not agree with their rulings, nor have Republicans simply disregarded Supreme Court precedent.
Lifetime appointments for Supreme Court justices are appropriate and should not be changed. The Supreme Court must be independent and should not become a conveyer belt where new justices are consistently introduced and replaced. The justices must be able to rule without the threat of losing their jobs, without external political influences, and without the pressure to rule a certain way due to employment or other concerns that will undoubtedly come up when their term ends.
While imposing term limits is a good idea in certain contexts, such as when dealing with politicians or members of Congress, such limits should not be imposed on Supreme Court justices. The fact that some people disagree with how the justices rule in one or more cases does not provide adequate grounds to impose term limits on the justices. Moreover, these limits will not eliminate the gamesmanship, politicization, contentious hearings, or public distrust of the nation’s highest court.
It is a bad idea altogether.
Photo: Adobe Stock
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