It’s well-known that during the last presidential term three Supreme Court justices were nominated by a president who lost the popular vote and were confirmed by a group of senators representing less than half of the national electorate. What’s more, over the last 44 years Democrats have held the presidency for 20 and have appointed four justices; Republicans have held it for 24 and have appointed 11 justices.
“We’ve won the game, and now they’re trying to change the rules,” conservatives say in response to news that President Joe Biden might consider reforms to even the playing field. But there’s no rationale, other than inertia, for maintaining the system that produces such imbalanced results.
It’s entirely possible for the shoe to one day be on the other political foot, with the next 44 years producing opposite results in terms of which party makes the vast majority of high court appointments. So it’s entirely reasonable for people acting in good faith to want to see reform considered before we get there. After all, democracy has never been a finite contest. Governments change the rules all the time, and democracy allows the people, via their elected officials, to have a say in how the government opts to change those rules.
A world without reform all but guarantees that a competent future Republican administration—or a competent future Democratic one, with turnover among the justices—would take advantage of an unbalanced Court when it presents itself and use it for their own partisan ends.
With this as a backdrop, Biden proposed his bipartisan reform commission. It sounds anodyne, but cue the Donny Downers on the right, even with the most likely outcome being a facially neutral term limits proposal that ensures no single future justice can serve accountability-free for decades on end, an idea that was once supported by the likes of Josh Hawley, Ted Cruz, Rick Perry, Ben Carson and Federalist Society co-founder Steve Calabresi.
Among plans to end SCOTUS life tenure, the “going proposal,” to use Justice Elena Kagan’s term, is one in which the Court comprises nine justices, and every two years, one cycles off and a new one cycles on. After 18 years, the justices continue to serve on lower courts or could return to SCOTUS in the case of an unexpected vacancy.
If put into practice, this scheme would take power away from individual justices. The reasoning here is clear: No single human in a democracy should have the ability for 35 or 40 year to say who can immigrate or access health care, where citizens can vote or pray, or who can marry or carry a gun.
Another result: Every president will have the same opportunity to appoint the same number of justices every four years. Another: term limits mean a larger number of Americans will serve as justices over time, so the Court will someday look more like the country and less like a country club.
There’s an additional less obvious benefit to the policy that might be the most significant: Say you’re a justice with an 18-year term and you’re writing the majority opinion in a momentous case. Knowing a new justice is never more than two years away from being added to the Court, do you pen a reactionary opinion that garners five votes, which might be overturned in short order, or do you write one in which you don’t get everything you want but, since it’s based on compromise, will likely stand the test of time?
The latter proposition sounds far more likely. Justices blanche when they’re called politicians in robes, but the metaphor fits at times. They, like elected officials, crave the power and attention that a majority opinion brings, and they hate being reversed in short order.
A Court producing compromise opinions would reduce the justices’ ability to radically alter American life and would give the democratically elected branches an expanded opportunity to legislate and regulate without fear of near-instantaneous reversal. Nature and power abhor a vacuum.
A final reason for doing away with life tenure: Americans are living longer than ever before and are often working into their later years. But it remains difficult to determine when cognitive decline, which is a natural part of aging, reaches the point of impairment. Professor David Garrow has charted the cognitive decline of justices throughout American history and found that once a generation, a justice becomes impaired yet stays on the bench—liberal lions Bill Douglas, Bill Brennan, and Thurgood Marshall among them.
It’s impossible to predict when this diminishment might occur, but if presidents appoint justices at around age 50 or 55, then it’s far less likely that they’d be impaired by the time they were required to leave the Court at 68 or 73. This is hardly ageist. It’s simply common sense, stemming from our common human mortality.
Even Supreme Court jurisprudence favors a term limit or a mandatory retirement age based on current parameters of human existence. “The people,” wrote Justice Sandra Day O’Connor in her majority opinion in Gregory v. Ashcroft, 501 U.S. 452 (1991), “have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform. It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age.
“The people may therefore wish to replace some older judges,” she added. “Voluntary retirement will not always be sufficient.”
Progressives charge that a bipartisan commission may not be sufficient, either, to rein in the Court’s power or upend its endemic imbalances. That’s a fair criticism. But let’s focus on the positive: That there is a president coming from a place of good faith willing to spend political capital on fixing SCOTUS, to paraphrase Justice O’Connor, is legitimate, indeed compelling.
After all, if Delaware’s dean of moderation says we could use some Court reform, then, “God love ya,” we must really need it.
Image: The US Supreme Court is seen in Washington, DC, on May 4, 2020, during the first day of oral arguments held by telephone, a first in the Court’s history, as a result of COVID-19, known as coronavirus. Photo by SAUL LOEB/AFP via Getty Images