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Supreme Court Term Limits Bill Should Have Broad Bipartisan Support So It Probably Won't – Above the Law

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Once more with feeling.
Congress has a new bill proposing staggered term limits for the active panel of the Supreme Court, which is logical and popular because the Supreme Court has wildly succeeded in bringing Americans together around the fact that the Supreme Court is a trash institution at this point. And yet this bill is probably doomed because the other branches are only slightly less garbage.
Imposing term limits for active duty Supreme Court justices isn’t new — the first effort dates back to 1807. Nor is it radical given that the Constitution — the document with the text we’re supposed to follow to the letter! — defers all these questions to the political branches, only stating that federal judges generally can’t be kicked off the payroll absent impeachment. How the Supreme Court is structured and which justices comprise the Supreme Court at any given time is purely statutory.
This bill proposes that each presidential term make a nomination in the first and third year after an election. So one-term presidents would get two nominations and two-term presidents would get four. Thus eliminating the insanity of a popular two-term president putting two justices on the Court while an unpopular one-term president who lost both elections by millions of votes placing three justices in lifetime positions. The justices would then serve for 18 years before moving to senior status where they could serve to resolve recusals, fill unanticipated vacancies, and ride circuit.
It not only cools the stakes for each nomination by giving every chief executive equal access, it opens up the job to arguably more capable jurists that get overlooked now by presidents using actuarial tables to make increase the odds that their pick can hang around for three decades.
Fix the Court explains how this is different from the last term limits bill:
In terms of the text, the Johnson bill, called the Supreme Court TERM Act (H.R. 8500), differs from the Khanna bill in that the former does not exempt the current nine from being moved to senior status. In other words, were the TERM Act to go into effect, President Biden would make a SCOTUS pick next year, who, once confirmed, would push Justice Thomas to senior status, at which point Thomas would no longer hear cases or vote on petitions. The 2025 nominee would push Chief Justice Roberts to senior status, and so on. Under both proposals, senior status justices could return to SCOTUS should the number of active justices fall below nine.
While it would be such a rotten shame to see Thomas leave before he could further erase the Fourteenth Amendment, it could reduce the risk of further Court leaks.
This idea is wildly popular too! Over two-thirds of the public agree that the Supreme Court needs term limits. And while that makes this a bipartisan opinion, the idea is obviously more popular among Democrats who’ve watched a Court majority made up of nominees rammed into their jobs by presidents who came to office after losing the popular vote take an axe to abortion rights while creating an individual gun right that even conservative justices knew was constitutional gibberish as recently as the early 90s.
Which is why, despite its popularity and straightforward reasonability will probably doom this legislation. Back when Ruth Bader Ginsburg seemed like she could live forever, conservatives like Ted Cruz openly called for Supreme Court term limits and that was the moment when everyone should’ve come together over the idea.
But now it’s going to be seen as too partisan and die in the Senate.
Hopefully I’m wrong about that. Because this is a reform that the judicial system desperately needs as it suffers a legitimacy crisis far deeper than ASSLaw clerks.
It just seems like this proposal is coming several days late and millions of dollars short. Staring into a bleak midterm election with this proposal doesn’t look like a winning strategy. This is why Democrats needed to embrace the objectively bad idea of expanding the Supreme Court as a negotiating strategy from day 1. Lean into the far more aggressive option of adding 10 more seats to the Court in January 2021 and then you could make term limits a compromise position in 2022.
Indeed, there’s a sound argument that the broad popularity of term limits stems in part from polls that contrast it with the more extreme court expansion proposal (which polls in the high 40s) that is usually asked as part of the same polling. It’s, like, actual empirical data that supports opening negotiations with a more aggressive option!
But the Democrats didn’t do that. Maybe taking the maximalist position off the table from jump won’t doom the right solution proposed by this bill.
But it certainly didn’t help.
Earlier: Congress Introduces First Supreme Court Term Limits Bill!
The Missed Opportunities Haunting The Supreme Court’s Abortion Move
HeadshotJoe 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.
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