The continuing debate over the Supreme Court and term limits
GOP presidential candidate Mike Huckabee has renewed a call for term limits for Supreme Court Justices, but such a task would be a very tall one under the Constitution’s terms.
Mike Huckabee. Photo: David Ball
Huckabee has made the call several times after the current Court ruled on significant cases involving Obamacare and same-sex marriages recently.
“Let’s say if we made it 16 years, even 20 years, I don’t have a specific arbitrary goal in mind. I just think that people, whether they’re in the executive branch, legislative, or judicial branch, shouldn’t see their appointment to a office as that it would be that they have permanent, no accountability whatsoever, and I also think when a person can be appointed to the Supreme Court and stay there for 40 years, my gosh, they might have outlived, you know, six or seven presidents during that course of time,” Huckabee said on CNN’s State of the Union program this weekend.
Huckabee joins several liberals and conservatives in calling for some limit on lifetime terms enjoyed by federal judges. Senator Ted Cruz, another GOP contender, wants retention elections for the Supreme Court, while liberal scholar Erwin Chemerinsky has argued for 18-year terms for the Justices.
Last fall, Chemerinsky appeared on the PBS News Hour to discuss the topic along with National Constitution Center president and CEO Jeffrey Rosen.
“Life expectancies thankfully are much longer today than they were in 1787, when the Constitution was written. Clarence Thomas was 43 years old when he was confirmed for the Supreme Court in 1991. If he remains until he’s 90, the age which Justice Stevens stepped down, he will be a Supreme Court justice for 47 years,” argued Chemerinsky.
Rosen explained while there were arguments for term limits, “it would require a constitutional amendment. And, in practice, that’s just not going to pass.”
Indeed, there are several significant parts of the Constitution as written in 1787, that make it difficult to change the tenure of Article III judges or remove them from office.
Article III, Section 1, of the Constitution says that federal judges, including the Supreme Court Justices, “shall hold their Offices during Good Behaviour.” Such judges can be tried through the impeachment process, and removed if found guilty in the Senate. But this has only happened once to a Supreme Court Justice, when the House passed impeachment articles against Samuel Chase in 1804. Chase’s opponents, including Thomas Jefferson, couldn’t get a two-thirds majority in the Senate to convict Chase in March 1805.
The other practical matter is the amendment process, which would be needed to change the Constitution. In one scenario, a super-majority of votes is needed in the House and Senate, followed by the approval of three-quarters of the states, for the Constitution to be changed.
Under a second scenario, states can ask Congress to call an amending convention, if two-thirds of the states join in such a demand. So far, though, no amendment has ever resulted from that process. And under the more traditional process, just 17 amendments have been added since 1791.
A proposed constitutional amendment, to add term limits for the Justices, would need to get in line with other possible amendments, in a politically charged climate. It would also likely require that a political party control two-thirds of the House and Senate, and three-quarters of the states, unless an idea has broad non-partisan support.
The last amendment, the 27th, was ratified in 1992 and put a check on congressional pay raises during a current two-year congressional session. An amendment to change the frequency of Supreme Court appointments would likely run into a spirited political debate.
Term limits for Justices, as a practical matter, didn’t seem to be considered at the 1787 Constitutional Convention in Philadelphia. In Federalist 78, Alexander Hamilton wrote that, “the standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government,” preventing “dangerous innovations in the government, and serious oppressions of the minor party in the community.”
But if an amendment were to be ratified about term limits for Justices, it wouldn’t be the first amendment about term limits. The 22nd Amendment, ratified in 1951, placed term limits on the office of the President.
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