SCOTUS Reform: Democrats’ new TERM Limits Bill
House Democrats have introduced legislation which would establish 18-year term limits on Supreme Court justices’ active tenure. It’s called the TERM Act (Supreme Court “Tenure Establishment and Retirement Modernization.”) It would:
- Establish terms of 18 years in regular active service for Supreme Court justices, after which justices who retain the office will assume senior status.
- The 18-year limit is keyed to maintaining a nine-member Court.
- Instead of waiting for a justice to die or retire, each president would get to nominate two justices in the first and third years of a four-year presidential term.
- This would be sole means of Supreme Court appointments;
- Each time a TERM appointee is named, the most senior member of the court (based solely on length of service) would move to “senior status.”
- In the event that a vacancy occurs because of death, resignation or impeachment, the most recently appointed senior justice(s) would return to active status until the full complement of nine TERM-appointed justices fill the bench again.
- The life-tenure requirement of the Constitution would be met by ensuring that senior justices retired from regular active service would continue to hold the office of Supreme Court justice, including official duties and compensation.
- Only justices on the active nine-member panel would participate in hearing arguments, voting on and writing opinions.
Congressman Hank Johnson (GA-04) is the principal sponsor of the bill. Senator Sheldon Whitehouse is sponsoring it in the Senate.
“America is alone among modern constitutional democracies in allowing its high-court justices to serve for decades without term or age limits, resulting in some Presidents appointing no justices and others appointing as much as a third of the Court. Regularizing appointments every two years will ensure a Supreme Court that is more representative of the nation, reflecting the choices of recently elected Presidents and Senators. Term limits for Supreme Court justices are an essential tool to restoring a constitutional balance to the three branches of the federal government.
The Supreme Court TERM Act would build on the existing retirement system for Article III judges, which the Court has repeatedly upheld as constitutional. The bill would also preserve judicial independence by ensuring that Supreme Court justices who assume senior status remain fully compensated members of the federal judiciary for life, capable of exercising official duties on and off the bench for as long as they choose.”
The SCOTUS reform panel commissioned by President Biden last year explored implementing term limits as one of a number of reforms to the court. It noted that the idea is one that has “enjoyed considerable, bipartisan support”.
Of course, bipartisan support is nowhere to be found now that the Republicans have stacked the Court to a 6–3 right-wing advantage. The execrable Jonathan Turley somehow finds foul play in a piece of legislation that on its face restores integrity to the Court by making the appointment strictly dependent upon the outcomes of democratic elections:
“Democratic members have continued their unrelenting attacks on the Supreme Court and its conservative majority. This week, Senate and House members have introduced a bill to impose term limits, regularized confirmation schedules, and other changes. In introducing the legislation, Sen. Sheldon Whitehouse (D., R.I.), Rep. Hank Johnson (D., Ga.), and others have left no question that this is just the latest effort to change the balance of the Court in favor of a liberal majority. Such comments make the bill seem like little more than legislative graffiti.”
I have to assume that Turley is worried about the likelihood that “liberal” presidents are going to win elections for the foreseeable future — which is the only way this act would “change the balance of the Court in favor of a liberal majority.”
It is true, as Turley points out, that the three justices next to retire would be Thomas, Roberts and Alito. This, however, reflects the fact that if you shoot into a barrel that has twice as many GOP fish, you have a greater likelihood of hitting a GOP fish. More to the point, if the GOP winds up with the White House in 2024 (perish the thought) Thomas and Roberts would be replaced by Republican appointees.
At worst, this legislation would incentivize Americans to get of their duffs and vote.
As a practical matter, this bill won’t go anywhere in the current Congress. It may pass the House, but it will not get through Manchin’s filibuster- burdened Senate. Needless to say: Everything depends on the midterms in the fall.
I think it’s a good piece of legislation. It promises to keep the Court refreshed and it counters, to some extent, the kind of raw power grab which McConnell and Trump committed in blocking Obama’s nominee and then stuffing Barrett down our throats.
A weak spot is that it does not prevent another majority leader from pulling a McConnell and refusing to allow the nomination to get to the floor for a vote. That needs to be shored up, either through legislation or amendment of the Senate rules.
This explicitly avoids Democrats’ packing the Court. Fair-minded Republicans should embrace it — they only want to play fair.
Like W.C. Fields, they’re all for pineapple juice as long as no one actually puts pineapple juice in it.
Link to proposed bill: untitled (house.gov)