President Biden’s commission exploring a Supreme Court makeover has given liberal activists and lawmakers a rare opportunity: a chance to realize the political left’s longtime goal of curtailing the lifetime appointments of justices.
Term limits or mandatory retirement ages for Supreme Court justices would represent a path of less resistance for the left, especially when compared with more radical proposals such as packing the conservative-leaning court.
Advocates for term limiting say the length of tenure on the court has nearly doubled in the past 50 years, from an average of 16 years in 1970 to 28 years today, according to an analysis by the left-leaning advocacy group Fix the Court.
“Three decades is too long a time for anyone in a democracy to have as much power as a Supreme Court justice has,” said Gabe Roth, the group’s executive director.
Term limits or age rules would not necessarily provide an immediate benefit to Democrats because many of the most recent appointees are relatively young.
President Trump’s three appointees to the nine-member court range in age from 49, Justice Amy Coney Barrett, to 53, Justice Neil M. Gorsuch, and 56, Justice Brett M. Kavanaugh.
The Constitution has been interpreted as giving judges lifetime appointments. Article III reads, “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior.” Impeachment typically has been used to force a judge from service.
Liberals have put forward several plans for term limits. Some of the proposals wouldn’t take away lifetime appointments but would rotate the court on which the justice sits from the high court to lower courts.
One plan calls for a constitutional amendment that would end life tenure after 18 years. The justices could remain part of the federal judiciary for life but would serve on lower courts with the permission of the chief justice.
Another proposal would have the president nominate a justice to the court in every odd-numbered year. The nominee, if approved, would begin serving only after a retirement.
Supporters of rotating justices say it would help lower the stakes during confirmation battles.
“Justices would no longer game their retirements and hold on to their seats past their primes and until a like-minded president sits in the Oval Office,” Mr. Roth said.
He supports legislation that would change tenure by creating “senior status” for Supreme Court justices. After 18 years of service, a justice would be allowed to serve elsewhere in the judiciary for life.
“Senior status for lower court judges was created by Congress, so Congress could create a kind of senior status for future high court justices,” Mr. Roth said.
Conservatives worry that rotating justices could further polarize the confirmation process.
“It could potentially turn the temperature up rather than make things less political,” said Curt Levey, president of the conservative-leaning Committee for Justice. “We already have enough fights over the Supreme Court.”
Also, if a president is able to nominate a justice every other year, then a two-term president could appoint four of the nine sitting justices. “I think that is a little disturbing for some people,” Mr. Levey said.
Still, debating term limits is less partisan than packing the court.
“It’s a compromise,” Mr. Levey said. “I think it will make even progressives feel better. Things are being done.”
The issue of term limits for justices has been a subject of debate for years, especially when questions are raised about mental capacity as justices age.
Justice John Paul Stevens, who died in 2019, expressed concerns in 2011 after his retirement that he wasn’t articulating his positions as well as he had in the past.
Justice Ruth Bader Ginsburg, who died in September, and Justice William H. Rehnquist, who died in 2005, missed arguments during the last years of their lives because of health issues, though neither faced questions about their mental capacity.
“If you’re senile at 80, there’s nothing forcing you to get off the court,” Mr. Levey said. “That, to me, is the bigger concern.”
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