Supreme Court Term Limits Still The Only Reform That Matters

Our former colleague, Nation justice correspondent and best-selling author (affiliate link) Elie Mystal, has a new podcast out called Contempt of Court. The series examines various avenues of Supreme Court reform. He’s already tackled expanding the Court generally and expanding the Court to 29 justices,  but this week he eschewed discussing tangible reform efforts in favor of throwing water all over the most popular proposal: term limits. Which he describes as “the falling in love with a stripper version of court reform” — a curious analogy because usually when we compare something to “falling in love with a stripper” it’s the option that’s comically unattainable and involves fantasizing about a 29-way.

The expansion vs. term limits argument isn’t new. Back in 2015, some of us argued that then-mounting GOP support for term limits offered a bipartisan off-ramp that would resolve the threat of an unhinged Court for good. But Democrats were convinced that the Blue Wall of Pennsylvania, Wisconsin, and Michigan could never falter, a permanent Democratic majority was a demographic inevitability, and Hillary would replace Scalia and both her husband’s justices to build the Supreme Court for the next generation. So when progressives today passionately argue for adding justices, blowing up the expansion taboo, and creating a ticking time bomb of new justice slots poised to all expire at the same time for an unknown administration 15-20 years from now, I think…

… Well, what is it they say about the definition of psychosis?

Anyway, here we go again with the expansion talk. As the Supreme Court proves itself absolutely rotten with problems crying out for reform — and we don’t even need to look past June for that — we’re still beset by Court expansion proposals that not only fail to address most of the Court’s cavalcade of issues, but serve to make most of them even worse.

All right. Enough dithering. Let’s check out the episode:

The core problem with term limits is that they are brazenly unconstitutional. Every other reform we’ve talked about in this series, or will talk about, the Constitution either approves of or is silent about. But term-limits? Nah, the document is specific about that.

This is not true at all and we’re not even out of the episode’s description yet.

That’s not entirely fair. Yes, a proposal that would kick Clarence Thomas off the federal judiciary based on his seniority would be unconstitutional. Thankfully, literally no one makes that proposal.

Technically, “term limits” is a misnomer. Justices would still get paid for life, but Congress would restructure the Supreme Court itself such that each individual jurist only sits on the active duty Supreme Court for a limited period — usually requiring a new appointee every two years with individual justices leaving the nine-justice panel after 18 years — with the rest going on senior status and riding circuit or only hearing original jurisdiction cases (the only cases actually required by the Constitution). Have fun adjudicating disputes between the states for the rest of your life, senior justices!

Despite the shorthand civics most folks learn, the Constitution only dictates that there be a Supreme Court, and assiduously avoids defining what that institution looks like, leaving it up to the other branches to work out. Congress did so with the Judiciary Act, which is a statute and not the Constitution.

There’s a reason why Supreme Court reform experts focus on term limits statutes and it’s not because they somehow forgot to check the Constitution.

So where Elie says, “the document is specific about that” he really means “the document is in no way specific about that.” In fact, here’s what the document in question actually says about life tenure:

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Grammatically, all the Constitution is specific about is that you can’t take away someone’s robe or salary. Beyond that, it’s all statutory.

Back to Elie:

From Article three, section one, the judges, both of the Supreme and inferior courts shall hold their offices during good behavior. The founders were clear that the justices should hold their positions for life and they could only be removed through the constitutional process of impeachment.

It’s subtle, but see how that’s not exactly what the Article III text excerpted above says? The Constitution doesn’t even define the office of “justice” it just says “judges” shall keep their offices. It’s already reading more into the text than is really there to assume that “justice” is some sort of different animal.

Look, let’s be realistic. Even though the idea that this text makes term limits unconstitutional isn’t nearly as ironclad as term limit opponents like to think, the existing Supreme Court absolutely could impose that meaning on this text. The past several years establish that this Court is not shy about imposing whatever reading it wants on a text no matter how unmoored it might be from plain meaning. Remember when gun control laws were all but universally upheld for the better part of two centuries because “well-regulated Militia” still meant something? So the Court could easily kill any term limits proposal on these grounds if they chose.

And if they did… so be it. It’s still worth a try. Literally nothing would be lost by coalescing grassroots efforts around these proposals.

As an aside, expanding the Court by some number of justices wouldn’t necessarily escape an overactive, politically motivated majority. Expansion should be constitutional, being as it’s grounded in amending the Judiciary Act and has historical precedent. But, if you believe this Court could read into Article III the idea that their unique power as justices (as opposed to just their pay) can’t be “diminished,” then they’re absolutely going to balk at flooding the Court with a bunch of new justices for nakedly political reasons. Advocates of expansion (except those who limit reform to matching the number of circuits — an admittedly clever framing) don’t even try to sugar coat the separation of powers fight they’re inviting. It’s not clear who would have standing to bring that case, but who needs standing these days?

At that point, the difference between expansion and term limits might well be which branch has the popular support to prevail in a constitutional crisis. That’s where that broad bipartisan support — Elie notes and dismisses a recent poll showing that two-thirds of Americans favor term limits for Supreme Court justices —  actually matters.

Given that there’s a colorable constitutional case for term limits with the benefit of popular support and there’s zero disadvantage to trying it, arguing that term limits should not even be considered requires cobbling together some sort of defense of life tenure since that’s the remaining distinction between the two options. For this, Elie cites the Framers:

They didn’t want judges thinking about their next job. They didn’t want judges pandering to future paymasters or political interests in search of their next paycheck.

True… and that’s solved by setting a term certain for Supreme Court empaneling. To borrow from Kanye, “18 years, 18 years — got one of your Supreme Court seats, got you for 18 years.” No pandering. No political jockeying. No need for a next paycheck.

It’s also a justification that cuts in favor of term limits. Clarence Thomas and Sam Alito are living high on the billionaire hog right now BECAUSE of life tenure not in spite of it.

How does anyone suggest life tenure is a check on corruption in the year of our Lord 2023?!? Rich people are investing in Supreme Court justices right now to secure the long-tail rewards of those justices spending decades on the bench. And while term limit proposals would keep those judges on “the bench” it would remove them from the particular bench structurally capable of operating as a superlegislature.

Issue by issue, term limits thump expansion at every turn.

Corruption? As just noted, limits mitigate the incentives for bad actors somewhat, while expansion can only hope to solve it by adding more mouths to feed. But there’s no limit on the mouths the Harlan Crows and Paul Singers of the world can feed. Advantage: term limits.

Philosophically? When you actually read the Constitution and surrounding material it’s pretty clear that the Framers never contemplated a Supreme Court with the level of power this one wields. It’s pretty safe to say that a country beholden to an unelected and unaccountable Star Chamber of ersatz nobility would be anathema to the Framers. Term limits resolves this. Expansion does not. Indeed, expansion doubles down on this by making a whole lot more of these petit noblesse to serve for life.

Dead-hand governance? After the initial proposed expansion, those seats are there forever and whichever administration reaps the grim reaper’s biggest windfall gets to extend its influence into the future. Bill Clinton got fewer appointees in two terms than Trump secured in one. Term limits solves this, making the Court an equal opportunity lagging reflection of the nation’s expressed core values. Expansion goes all in on dead-hand governance banking on the idea that giving Biden an artificial influence boost today and then gifting those seats to an administration 20 years down the road cannot possibly bite them in the ass.

Artificial talent cap? Nothing against any current member of the Court, but a lot of qualified potential justices didn’t get considered because they were “too old.” With life tenure turning the Court into a given president’s political influence nest egg, all the incentives push toward younger nominees, cutting off excellent potential justices based solely upon actuarial tables. Expansion just adds more young justices.

Delivering progressive case outcomes? If the only goal is overruling Dobbs and protecting the settled constitutional order right now, then expansion wins hands down. But that short-term advantage risks getting swallowed pretty fast.

Again, this is the hubris that landed Democrats in this mess in the first place. While the long arc of history is swinging Blue, that isn’t enough. The Senate structurally favors Republicans over at least the medium term, the House changes hands — through gerrymandering hooliganism or not — all the time, and the Electoral College offers the GOP an outsized advantage (in part because of a statutory end-run around the Constitution that no one ever talks about). A Republican lockout will eventually arrive. Expansion breaks the taboo for that future administration to erase whatever short-term gains Biden could capture today. And that’s above and beyond the fact that every additional seat created today is another seat that will be filled at roughly the same time down the road.

And this is before considering the impact that expansion could visit upon the Democratic-leaning electoral landscape. FDR was much more popular than Biden, enjoyed massive majorities in Congress, and was fighting for policies enthusiastically supported by most of the country and the mere threat of Court expansion hit his approval ratings like a lead balloon. Would Biden and assuredly thin Democratic majorities survive actually going through with it?

Politicization of the judiciary? If this is avoidable at all, term limits makes the best case by granting each administration equal access to Court appointments instead of opening the door to future tit-for-tat expansions or setting up a down-the-road election hitting like a balloon payment when the justices added in 2025 all turn 80.

This politicization problem is at the core of why solving for radical right outcomes is impossible without term limits. The right-wing fixation with the judiciary — and the development of the activist conservative legal movement — only exists because of life tenure. It’s the last refuge of a minoritarian political movement. The Federalist Society exists because a party that can’t consistently win elections is best served by ensconcing young ideologues in life tenured judgeships and then converting those “least dangerous branch” judicial positions into activist policymaking roles. It’s literally what the Federalists did in the 19th century — the Society put its mission right there in the name!

Without resolving the tenure problem, the party that keeps losing the popular vote will always center the Court as a political rather than a legal institution. And with that, will always push back constitutional guardrails on Court power — ignoring precedent, playing games with standing, shadow docket shenanigans, etc. — to maximize the authority of their dead-hand role.

They only need to win once to govern for decades. Or, at least, win once and have a non-right-wing justice die (because it’s not just Democratic appointees… they wanted Stevens and Blackmun out too) though even that requirement disappears once expansion is on the table.

So, this is the calculus: expansion is slightly easier to pass than term limits. But expansion cannot solve multiple independent harms that only term limits can address, makes many of those persistent open sores on the Supreme Court even worse, and then STILL fails to provide stable, long-term solvency for the “progressive values” — which is the whole idea’s only justification in the first place!

Well, it’s not expansion’s only justification. There is one more pretty important one.

It’s gravity.

Expansion may be a bad solution all the way around, but coupled with the popular consensus that it would be easier to pass, expansion can become the opening offer in negotiations that end in term limits. Diluting the justices through addition presents the existential threat that could — potentially — bring Republican legislators to the table and force the Supreme Court to swallow its medicine.

Would it work? Who knows? None of this is really going to happen because the top of the Democratic Party is trapped in a fog of 1970s era bipartisanship that can’t even consider aggressive action. But to the extent we’re going to talk about Supreme Court reform at all, at least nurture the reform that actually has some momentum behind it and could address the fundamental problem plaguing the Supreme Court. Especially when no one can point to a single disadvantage to trying to impose one of these term limits proposals even if it were to fail.

Because it doesn’t get more “falling in love with a stripper” than blowing off long-term stability and a plethora of glaring red flags to embrace a solution for right now without a care for tomorrow.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.