The Supreme Court opened its new term this week, but hardly anyone noticed. Instead the attention is drawn to the one empty seat and the process to fill it. The descriptive terms in the media tell us all we need to know about the faulty process: chaos, contentious, meltdown, Armageddon, battle, wounds, nuclear option, battle lines. One justice’s retirement has opened up bitter divides and has led to all-out warfare in Washington.
The Founders of our republic would be shocked because, according to Federalist No. 78, they saw the judiciary as “beyond comparison the weakest of the three departments” of the federal government. Having the power of neither the sword nor the purse, the role of the courts was to be minimal. By now, however, the Supreme Court makes the most important social decisions, and many of the biggest economic ones, of our day. With gridlock in Congress, you can nevertheless count on the high court to decide hard questions, and most of the difficult ones make it there.
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It is fair to say the Founders would also have been surprised that a lifetime appointment might some day mean 30-40 years on the court. Justice Anthony Kennedy recently retired after 30 years on the court, and Justices Clarence Thomas at 27 years, Ruth Bader Ginsburg at 25, and Stephen Breyer at 24 are close behind. Most acknowledge that William O. Douglas, who served the longest of any Supreme Court justice (37 years), was not entirely capable late in his term.
In the last 100 years, the average tenure of a justice was 17 years, and it will doubtless be twice that in the near future. As people live longer and retire later, it is partly the natural course of things, but as contentious and important as the selections are politically, presidents choose younger justices (Neil Gorsuch was 49, Brett Kavanaugh 53) who can serve longer and extend their political legacy. Justices generally do not retire unless their party of choice is in the White House to appoint a favorable replacement.
I am not a fan of term limits, generally. I believe they limit the right of the people to vote for whom they wish. But the people are not voting for Supreme Court justices. Further, in my view, there are not sufficient checks on the power of the Supreme Court so term limits, or even age limits, make more sense. There are several interesting proposals out there to do this. Staggered terms of 18 years, after which a judge could return to another court within the federal judiciary, is one of the better ideas. In effect, a president would be choosing a new Supreme Court justice every two years, greatly reducing the political pressure and all-out warfare we see today. Justices would not be serving 30-40 years, often well past their prime.
Given constitutional requirements, implementing term limits will not be easy. Article 3, Section 1 of the Constitution says judges “both of the supreme and inferior courts, shall hold their offices during good behavior.” A constitutional amendment would be the best way to go about it, and it may not be as difficult as some amendments, since 49 of the 50 states already have a form of term or age limits for their state supreme courts. One could argue that term limits do not violate the Constitution, since the judge would not leave office altogether, merely be reassigned to a lower court. Finally, a prospective justice could be required to agree to a limited term in order to be nominated and confirmed.
The high stakes and contentious Supreme Court appointment process we now have is clearly dysfunctional. One silver lining from the dark Kavanaugh appointment cloud should be serious attention to term limits for Supreme Court justices.
David Davenport is a contributor to the Washington Examiner's Beltway Confidential blog. He is a research fellow at the Hoover Institution.