It’s Time to Modernize the Supreme Court

About the Author: Jackson Colling is a first year law student at American University- Washington College of Law. Jackson graduated from Rollins College and hopes to pursue a career in the federal government focusing on international or national security law after graduating law school. 

 

Thirty-eight days after Ruth Bader Ginsburg’s death, one week before the 2020 presidential election, the Senate confirmed forty-nine-year-old Amy Coney Barrett to the Supreme Court.[1] Justice Barrett’s appointment was representative of the increasing polarization over the appointment of Supreme Court Justices. In the midst of a pandemic, economic turmoil, a racial justice movement, and a presidential election, the Senate deemed it necessary to take the time to appoint Justice Barrett instead of moving onto these other pressing matters. The appointment process highlighted yet again how brutally partisan appointing a Justice to the Supreme Court has become. Democrats raged against Republican hypocrisy, recalling Barack Obama’s attempted appointment of Merrick Garland in 2016, while Republicans maintained that they were given a mandate by the American people to fill the seat in a timely manner.[2] At a time when the American people needed the government’s help the most, politics took precedence. Given this recent episode, now is as good a time as any to address the underlying issue of lifetime appointments to the bench by reintroducing a decades-old idea that has bipartisan support and is designed to provide continuity and reduce partisan rancor: term limits for Supreme Court Justices.

On September 29th, 2020, California Congressman Ro Khanna introduced a bill in the U.S. House of Representatives that would “establish a process by which the appointment of Supreme Court Justices can occur at regular time intervals,” creating a system where Justices serve only eighteen-year terms.[3] This is the first time in U.S. history that legislation has been introduced to reform the lifetime appointments to the Supreme Court.[4] The bill is currently in the first stage of the legislative process and is estimated to have only a twelve percent chance of adoption.[5] While it is a long shot, the ideas the bill embodies have historically broad bipartisan support, even amongst the current justices.[[6]][[7]]

The terms of the bill involve a president appointing a Justice during the president’s first and third year of his or her term to serve an eighteen-year term on the Supreme Court. At first, this would possibly result in having more than nine Justices on the bench because the current Justices would not be forced to retire. Every two years a Justice would be added and begin his or her eighteen-year term. Eventually, all of the Justices appointed before adoption of the bill would retire, leaving only Justices with term limits.

Proponents of this idea say that by guaranteeing that a president will appoint two Justices during one term, the Supreme Court will more closely resemble the apparatus the Founders envisioned; a judicial body more isolated from political pressures.[8] They also claim that confirmation hearings will become less contentious by making appointments a regular issue. Today, a Justice will serve, on average, around twenty-six years, making the opportunity to fill a seat on the bench a top priority for any administration.[9] Proponents think that with two appointments built into every administration, the contentiousness and opportunism that currently accompanies a nomination will slowly disappear.[10] On top of reducing the political pressures of confirmation, it will turn the Supreme Court into a body that is more representative of the democracy it is meant to serve. Americans, through electing the president, will have a greater say in the direction of the court, ensuring that the court reflects the ideals and norms of current society.

Critics have pointed out that this very well may not solve the politicization of the court, but only further entrench partisanship.[11] In the current political climate, it is not hard to imagine a scenario where an opposing party controlling the Senate blocks both of a president’s appointment attempts and uses the two extra seats as ballot issues in the next election. Another criticism pertains to the transition period between enactment of this reform and its full effect. There would be a period of time, most likely decades, where Justices with lifetime terms and Justices with eighteen-year terms serve alongside one another, which critics say would present potential logistical difficulties and may not be worth the trouble to pursue.[12] This criticism, however, is aimed more at the implementation of term limits rather than the actual substance of the idea itself.

Although Congressman Ro Khanna’s bill and the idea of eighteen-year term limits as a whole may have its flaws, it is a starting point. This is an important issue and it is imperative that both parties come together to find a common solution to modernize the Supreme Court and make it more representative of the United States as it exists today – a country of rapidly shifting demographics and increasing diversity.

Implementation of this legislation may not eradicate the political divisiveness that plagues our country, but it does offer a possible foundation upon which future legislators can build, and which, in turn, may help alleviate the seemingly inherent dysfunction of the nomination process.

 

[1] See Emily Hopkins, Fact check: Claim noting time between CARES Act and Barrett confirmation is true, USA TODAY (Nov. 5, 2020, 10:58 AM), https://www.usatoday.com/story/news/factcheck/2020/11/05/fact-check-over-200-days-between-cares-act-barrett-confirmation/6172691002/.

[2] See Emma Green, How the Senate Stopped Pretending, The Atlantic (Oct. 15, 2020), https://www.theatlantic.com/politics/archive/2020/10/amy-coney-barrett-senate-hearing-fail/616744/.

[3] Supreme Court Term Limits and Regular Appointments Act of 2020, H.R. 8424, 116th Cong. (2020).

[4] See Kalvis Golde, House Democrats to introduce new bill for Supreme Court term limits, SCOTUSblog (Sept. 25, 2020, 4:00 PM), https://www.scotusblog.com/2020/09/house-democrats-to-introduce-new-bill-for-supreme-court-term-limits/.

[5] See Govtrack, https://www.govtrack.us/congress/bills/116/hr8424 (last visited Nov. 15, 2020).

[6] See John Fund, It’s Time for Term Limits on the Supreme Court, National Review (Nov. 24, 2018, 6:33 PM), https://www.nationalreview.com/2019/11/supreme-court-term-limits-have-bipartisan-support/.

[7] See Term Limits: The Justices’ Own Answer to the Broken SCOTUS Confirmation Process, Fix the Court (July 7, 2019), https://fixthecourt.com/2019/07/termlimits/.

[8] Term Limits, Fix the Court (Sept. 29, 2020), https://fixthecourt.com/fix/term-limits/.

[9] See Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 Harv. J.L. & Pub. Pol’y. 769, 812 (2006).

[10] Id.

[11] Ilya Shapiro, Term Limits Won’t Fix the Court, The Atlantic (Sept. 22, 2020), https://www.theatlantic.com/ideas/archive/2020/09/term-limits-wont-fix-court/616402/.

[12] Id.

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