Want Supreme Court Term Limits? Here’s How to Do It
The Brennan Center has laid out a compelling roadmap for Congress to follow.
One of the many things I value about working at the Brennan Center is that I am surrounded by some of the sharpest thinkers in the country, if not the world, on democracy, courts and the law. When I sat on The New York Times editorial board, many of these people were my trusted sources; now they are my colleagues. It is a privilege to be able to knock on a door, make a call, send an email, or Slack them with questions about their work — our work — and I avail myself of that privilege daily.
The latest example of this came last week, when the Brennan Center published a new memo on Supreme Court term limits by my colleagues Alicia Bannon, Stephen Spaulding, and Eliazar Chacha. The memo makes the case for why Congress has the power to institute term limits through federal statute, no constitutional amendment required. I made this point in a Times essay in May, but I did not dwell on it then; that’s what Major Questions is for.
At 40 pages, the memo is the most thorough and evenhanded treatment of the subject I have seen yet. While this may sound like a funny thing to say about a heavily footnoted legal memo, it’s actually thrilling to read. (Perhaps that marks me as a Supreme Court nerd, but you already knew that.) The thrill comes from seeing a path to a desperately needed reform laid out before you with such clarity and rigor, with the most serious objections addressed head-on and refuted. This is how change happens, friends! Much of the last several decades of American politics have felt like an exercise in futility, as long-simmering problems only get worse and we are told there’s no way to fix them. Here, on this one issue at least, is a clear way.
First, I’ll summarize the memo, which you can read in full here.
The central theme is one that I have been hammering at since the first edition of Major Questions: Congress has far more power over the Supreme Court than most people realize, and certainly more than it has exercised in living memory.
That power derives from several clear constitutional provisions, most of all the Necessary and Proper Clause, which authorizes Congress “to make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States.” The Constitution’s authors listed several explicit congressional powers, such as collecting taxes, regulating commerce, coining money, and declaring war, but they recognized that to fully exercise those powers, Congress would need additional powers — hence the Necessary and Proper Clause (h/t: James Wilson). As the Supreme Court put it in the landmark 1819 case McCulloch v. Maryland, the clause grants Congress “any means which tended directly to the execution of the Constitutional powers of the Government.”
When Congress was in the business of actually using its legislative powers over the Supreme Court, it relied on this clause all the time: to set the number of justices, or the Court’s jurisdiction, or the timing of its term, and so on. As the new memo explains, setting term limits for active service on the high court falls squarely within the clause.
“The breadth of what Congress not only can do but has done in the past was really striking to me,” Alicia told me. “In the early 19th century, Congress had the Court actually skip a whole year. We’ve lost that muscle memory in recent decades, as Congress has really not had as much engagement with the Court as an institution. But this is a historical aberration.”
What would a term-limits law look like? The current leading proposals all share the same structure: 18-year terms for justices, followed by a shift to senior status. Senior justices would no longer sit on the nine-member Court. Instead, their duties would change to include sitting by designation on lower federal courts (as many have done and continue to).1
The main objection to a term-limits law is that it violates Article III of the Constitution, which provides that justices hold their offices during “good behavior” — that is, for life. The answer, as the memo explains in depth, is that such a law would be perfectly consistent with that provision, because senior justices would continue to hold their offices (and draw their salary, as the Constitution also requires) for as long as they chose to remain justices.
How can we be so confident that this is right? Because both the Supreme Court and Congress have said so, repeatedly. In a 1934 case, Booth v. United States, the Court ruled unanimously that judges retain their offices even after taking senior status. Congress may not abolish a judge’s office, the Court said, but it may use its constitutional power to “lighten judicial duties.” The Booth decision involved only lower federal judges, but three years later, Congress extended the statute at issue to include Supreme Court justices. And in 1948 it revised the law to state explicitly that both judges and justices “may retain the office but retire from regular active service.”
While the Supreme Court has not considered a case directly challenging the constitutionality of the 1948 law, it noted in a 2003 decision that senior judges are, “of course, life-tenured Article III judges who serve during ‘good Behaviour’.” In the lower courts, not a single challenge to the law has ever succeeded.
That should be enough to convince you — it is enough to convince me — that Congress has the unquestionable power to set term limits for Supreme Court justices. But the memo doesn’t stop there; it takes on several other substantive objections to a term-limits law and, to my mind, convincingly refutes them all. I won’t go into the details of those objections here, but they are handled in Section III(D) of the memo if you want to see for yourself.
The bottom line is that court reformers should see the Constitution as a friend, not a foe. “When you look at the text of Article III, which governs the judiciary, there isn’t that much in there,” Alicia explained. “Our system was designed to allow Congress to figure out how to structure the Court in a way that is responsive to our needs in changing times.”
I do want to flag one other provision behind Congress’s power to set term limits: the Exceptions Clause of Article III, Section 2. The Constitution’s framers recognized two broad types of Supreme Court jurisdiction: original and appellate. Original jurisdiction is the power to hear a case from the outset, as a trial court does. The Constitution is clear about when the Court has original jurisdiction; the list is short and well-defined. In all other cases, the Constitution gives the Court appellate jurisdiction, but only “with such Exceptions, and under such Regulations as the Congress shall make.” That distinction is crucial. While Congress has no power to interfere with the Court’s original jurisdiction, it has enormous power to regulate its appellate jurisdiction, which is how the overwhelming majority of cases reach the Court. For that reason, the Exceptions Clause is arguably sufficient authority for Congress to set term limits, as Diane Wood, a former federal appeals court judge, has written for the Brennan Center.
Now for the realpolitik: Any Supreme Court term-limits bill that passes Congress will be challenged, and will surely end up before the justices themselves. How will they rule? It’s hard to say, but it’s important to have the strongest arguments in favor of it lined up in advance.
I’ve laid out the essence of those arguments above, but I want to leave you with a few bigger-picture thoughts. First, the justices often act as though they exist outside and above the Constitution, but as Alicia said, “That’s not true. They’re public servants, they’re part of our constitutional system, they’re part of checks and balances.” Which raises the curious fact that the American public recognizes that the Court plays an essential role in checking the other branches but is much more conflicted about the other branches checking the Court. (A topic for another newsletter!)
Second, term limits would be good for the Court’s legitimacy. You often hear opponents of term limits (including the justices themselves) claim that they would undermine the Court’s independence, but in reality, the Court is suffering from a perceived lack of independence, which has driven its public approval ratings to their lowest in history. That is the result of justices who stick around for decades, severing the Court’s connection to the democratic process. Term limits would help restore the Court’s independence.
Finally, what I find most encouraging about this fight, and what the memo so clearly illustrates, is that all the components of a term-limits law are already part of existing federal law and practice. For instance, retired justices already sit by designation on lower federal courts (1,300 times, by the memo’s count). “I think that is one of the things that is really appealing about term limits,” Alicia told me. “All of the pieces of this reform are largely already in place.” In short, term limits are not reinventing the wheel; they are attaching it to the broken-down vehicle at One First Street.
What I’m Reading
It’s a few months old now, but check out this piece on the last of the conservative swing justices, Anthony Kennedy, by Linda Greenhouse, the former New York Times Supreme Court correspondent, who is always worth reading.
This report from Pew Research Center on the actual diversity of American political opinion is a clear illustration of how much harm the two-party duopoly does to our ability to govern ourselves.
And this piece, from The New York Times last month, offers up a voting mechanism that could produce more broadly acceptable candidates: majority-rule voting, also known as Condorcet voting, in which voters rank-order their choices and the winner is the candidate who would defeat every other candidate in a head-to-head matchup.
Another reform idea! A fourth branch of government, argues Gabe Fleisher at Wake Up To Politics, would provide a level of accountability currently missing from the system.
No surprise, but important nonetheless: the latest Washington Post-Ipsos poll finds a majority of Americans now disapprove of the Supreme Court.
IMAGE: Kevin Carter/Getty
As Alicia, Steve and Eliazar rightly note, the phrase “term limits” is not technically accurate here, because the justices continue to hold their office after 18 years. Their term doesn’t end; it merely changes. Nevertheless, “term limits” is a familiar shorthand in conversations of this nature, so we’ll keep using it here until someone comes up with something better.