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The death of Supreme Court Justice Ruth Bader Ginsburg has spurred a partisan fight over her replacement and sparked a larger discussion about the structure of the court itself and whether major changes should be made to protect the legitimacy of the judiciary branch.
Some Democrats have floated the idea of “packing the court” (adding additional seats to offset the influence of conservative judges) if they take control of the Senate in 2021. The unexpected vacancy has also brought renewed attention to a long-simmering debate over whether Supreme Court justices should have term limits rather than lifelong appointments.
Progressive Democrats are reportedly planning to introduce a bill in the House of Representatives that would set 18-year term limits for justices and stagger the schedule of appointments so every president would get two nominations in a four-year term. Completely eliminating lifetime appointments would likely require a Constitutional amendment. This proposal, and others like it, get around that by allowing long-serving justices to hold a “senior” status in which they officially remain on the court but have limited duties.
Why there’s debate
Supporters of term limits believe it would decrease the intensity of the Supreme Court confirmation process, which has become a brutal political slugfest in recent years. In turn, justices would be less likely to allow partisanship to color their rulings once they’re on the court, they say. A more regular schedule of appointments would also prevent what some consider antidemocratic tactics, like Republicans’ refusal to consider Barack Obama’s nominee in 2016, that in some views have undermined the public’s trust in the nation’s highest court.
The Supreme Court is far too important, some argue, for its membership to be determined by whichever party happens to hold the White House and Senate when a sitting justice dies, especially since increasing life expectancy means that will happen less often. This randomness means some presidents have disproportionate influence over the court’s makeup, which can skew the balance of power in the country long after they’ve left office. No other democracy in the world gives lifetime appointments to members of its highest court. Others fear the court is on the brink of a legitimacy crisis. If Trump’s nominee, Amy Coney Barrett, is confirmed, a majority of the Supreme Court will have been appointed by presidents who lost the popular vote.
Opponents of term limits say regular vacancies would worsen, not reduce, partisan bickering about the court. A new seat coming available every two years would mean Congress would always have an upcoming confirmation battle on the horizon. The Founding Fathers intended lifetime appointments to free Supreme Court justices of the day-to-day influence of politics, and critics say term limits would spoil that.
There are also practical questions about how the limits might be implemented, since any plan would have to consider what to do with current justices, who were all named to lifetime seats. Depending on the proposal, it could be decades before a plan for term limits has any real influence on the makeup of the court.
The Senate Judiciary Committee is scheduled to begin hearings on Barrett’s nomination in mid-October. It’s unclear at this time whether a confirmation vote will be held before or after the presidential election on Nov. 3. In the short term, the odds of any bill imposing term limits passing would almost certainly depend on Democrats taking back the Senate next year.
The stakes of a court vacancy are too high with lifetime appointments
“Implementing term limits for the Supreme Court would be a step toward repairing and normalizing a process that raises the stakes of vacancies beyond what our politics, or the human beings who serve on the Court, can comfortably bear. It would be one important way we could deescalate the stakes of American politics, and protect the system from total breakdown.” — Ezra Klein, Vox
Life expectancy has improved so much that lifetime appointments don’t make sense
“It’s time to end the unseemly position that the anachronism of life tenure for Supreme Court justices has put the country in. It’s a good thing that modern medicine is extending the lives of everyone, including Supreme Court justices. But the time has come to remove the incentives that make justices serve until they drop dead or are gaga.” — John Fund, National Review
A president’s opportunities to name justices shouldn’t be left up to chance
“Staggered term limits would ensure that electoral winners shaped the Supreme Court, not the Grim Reaper.” — Elie Mystal, The Nation
Term limits would mean a greater diversity of thought on the Supreme Court
“Over time, more justices would have impact, preventing the idiosyncratic preferences of one or two individuals from determining U.S. jurisprudence for decades. This plan would also eliminate the incentive for presidents to pick young and relatively inexperienced judges merely because they are likely to live longer.” — Editorial, Washington Post
Taking politics out of the process would protect court rulings from partisanship
“This approach would end what has become a poisonous process of picking a Supreme Court justice. It would depoliticize the court and judicial selection, and thus promote the rule of law.” — Steven G. Calabresi, New York Times
Major steps need to be made to restore public trust in the court
“More than any other branch of government, the courts — and the Supreme Court in particular — gain their power from the public trust. Yet today, lifetime tenure for justices, and the strange and morbid circumstances that result, threaten to undermine that trust.” — David Litt, Boston Globe
Term limits could make political fights over court seats even more intense
“Term limits and regularly recurring vacancies might tone down the epic Supreme Court confirmation battles that have occurred roughly twice every eight years. But they might instead make knock-down, drag-outs a recurring part of the political landscape. An election preceding the end of a swing justice’s 18-year term could thrust the court into election year battles more intense than we’ve already seen.” — Russell Wheeler, Brookings
The transition to term limits would be too complicated
“There are also transition problems. Since term limits wouldn’t apply to sitting justices, for decades we would have term-limited justices serving alongside life-tenured ones. … Fixes could be put in place to prevent all this, but at some point the complications become more trouble than they’re worth.” — Ilya Shapiro, Atlantic
Lifetime appointments protect judges from having their decisions colored by the ebbs and flows of public opinion
“[Term limits] undermine the primary function of the judiciary, especially the Supreme Court: preventing political majorities from trampling on others’ constitutional rights. … Judges without life tenure are less likely to act independently of the political branches or of public opinion, and thus cannot serve the purpose of holding the tyranny of the majority in check.” — Suzanna Sherry, Philadelphia Inquirer
Term limits could lead to worse antidemocratic maneuvering
“If Congress can impose an 18 year term, they can also impose one that is 3 years or 6 years, and use that power to get rid of Supreme Court justices whose decisions they dislike. When the opposing party comes to power, they can make the terms still shorter, and thereby get rid of justices they dislike.” — Ilya Somin, Reason
Democrats only want term limits because conservatives control the court
“Wait, why is it that once the court could go 6–3 in favor of strict-constructionist originalist ‘conservative’ judges that we see this concern over lowering the temperature over fights for the Court?... I guess the legitimacy of the court is never at risk when it’s ruling in your favor.” — Jim Geraghty, National Review
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