Now that conservatives have finally attained a clear majority on the Supreme Court, Democrats suddenly want to change the rules and institute term limits that would force justices to retire immediately. As unlikely as this proposal sounds, Justice Stephen Breyer recently voiced his support for 18-year term limits because it would “make life easier” for him.
“I think it would be fine to have long terms, say 18 years, or something like that,” Breyer, a Clinton appointee, said on Monday at the Old Naval Hospital in Washington. “It would make life easier. I wouldn’t have to worry about when I’m going to have to retire or not, and that would be easier for me.”
Early retirement
If Breyer gets his wish, he would immediately be forced into retirement, along with Justices Clarence Thomas and Ruth Bader Ginsburg. A decade later, Justices John Roberts, Samuel Alito, and Sonia Sotomayor would be forced off the bench.
Breyer was careful to insist that term limits should be lengthy to protect the integrity of the high court. He said that shorter terms could expose judges to monetizing their service and making court decisions to benefit their post-judicial careers.
Judges serving on the high court are often pressured to retire when the White House is occupied by a president who will replace them with a like-minded justice. Otherwise, they risk upsetting the partisan balance that the political branches of government work so hard to achieve.
In simple, somewhat misleading terms, conservatives currently control the Supreme Court with a 5-4 majority. But critics of judicial reforms like “court packing” and term limits point out that activists only try to implement these new rules when their party is not in power.
“It seems to me that whenever partisans express a desire to mitigate the partisan unpleasantness in Washington, what they really want to do is mitigate the other side’s power,” wrote The Federalist senior editor David Harsanyi.
A number of Democratic presidential front runners have recently endorsed “court reform” as an urgent campaign issue. South Bend Mayor Pete Buttigieg and former U.S. Rep. Robert “Beto” O’Rourke, for instance, have each floated a plan where the Supreme Court is expanded from nine justices to 15 — 5 appointed by Republicans, 5 appointed by Democrats, and 5 chosen by the unanimous consent of these 10 justices.
Breyer rejected plans to pack the court, arguing that “nine is fine,” while insisting that he wasn’t commenting on any particular candidate’s proposal.
A game of high-stakes
The debate over court reform was reignited following Justice Brett Kavanaugh’s controversial confirmation hearings in September. Without evidence, several women accused the latest Supreme Court nominee of sexual assault, throwing the entire confirmation process into disarray.
Due to the critical nature of these hearings, Justice Elena Kagan told a group of students at Georgetown Law School in November that she understood the desire for term limits.
“I think what those proposals are trying to do is take some of the high stakes out of the confirmation process, and certainly to the extent that that worked and people could feel as though no single confirmation was going to be a life or death issue, that that would be a good thing,” the Barack Obama appointee said.
However, Kagan ultimately supported a life tenure for justices on the high court. “It means that none of us are thinking about the next job we’ll have because we won’t have a next job,” she said. “And nobody’s ever going to be in a position where they need anything from anybody ever again and that’s a really important thing to ensure the judicial branch is independent.”
However, even conservative justices have lobbied for term limits in the past. Long before he would serve as the Supreme Court’s chief justice, John Roberts advocated for term caps to keep federal judges from losing “all touch with reality through decades of ivory tower existence.”
In 1983, Roberts proposed limiting federal judges to 10-year terms, arguing that the Framers of the Constitution adopted life tenure at a time when life expectancies were significantly shorter. However, the Justice Department disagreed with Roberts’ proposal, insisting that a lifetime of service is crucial to preserving the nonpartisan nature of the judiciary.
The Framers weren’t concerned that a single justice might serve for four decades. Indeed, this may have been a desirable outcome, since it removes political pressure from those on the bench.
If Supreme Court justices are to remain neutral arbiters of the law, Americans must reject the recent progressive push to implement radical judicial reforms. Otherwise, the only non-political branch of government will be subjected to the same partisan mud-slinging that affects Congress and the executive branch.
No comments: