“The case for Supreme Court term limits has never been stronger,” claims a piece by liberal explainer site Vox. Unrelated, the president just nominated to that court Neil Gorsuch, who, as you might have heard, is a bit on the young and principled-constitutionalist side, making prospects of lifetime appointments particularly distasteful for many agitated Americans.
The article, and many others like it, embraces the idea that contemporary democratic inclinations are more vital to a court than tradition. Believe it or not, not every institution in American life needs to reflect mainstream opinion all the time. It’s because people might be occasionally tempted to ignore the Constitution that we have lifetime appointments for justices. The Supreme Court was specifically designed to avoid almost every idea term-limit advocates think bolster their arguments.
One reason Supreme Court limits would be great, according to Vox, is that it would “abate some of the destructive warfare of the Supreme Court confirmation process” — which, this writer seems to be under the impression, began with Barack Obama nominee Merrick Garland rather than with Robert Bork or Clarence Thomas.
It seems to me that whenever partisans express a desire to mitigate the partisan unpleasantness in Washington, what they really want to do is mitigate the other side’s power. This is why, for example, Vox founder Ezra Klein’s vociferousness about the evils of the filibuster tend to ebb and flow with the political fortunes of the Democratic Party.
Political parties reflect the mood and views of a polarized national debate. This is an organic reflection of the nation’s ideological and cultural divide. Unlike the Supreme Court, our democratic institutions offer voters a chance to make changes every few years. One way the court avoids the mercurial whims of democracy is by not changing all the time.
But if you are truly anxious that DC’s acrimony is undermining our brittle institutions, why would you, only paragraphs later, write: “if justices were staggered in their terms, everyone in Washington would know they’d have another opportunity to change the Court again soon enough.”
Incredulous italics are mine. That’s because the only reason we would give “Washington” — partisan, in the best of times — more opportunities to mold the Supreme Court is to make it more political. The nomination process is part of our checks and balances, of course, yet set dates for nominations would almost surely mean the rise of new political infrastructure built around the set nomination dates. Potential nominees, knowing when seats would be filled, would be more induced to make decisions favoring the ruling party’s viewpoints or sucking up to groups that can make them frontrunners.
Humans being humans, some of this already goes on, of course. Yet the unpredictable nature of timing undermines many of these plans. There is absolutely no reason to “significantly decrease the likelihood of another unexpected departure, like the one caused by Justice Scalia’s death almost a year ago now.” For starters, I’m relatively certain that the departure of a 79-year-old is not what one might describe as completely unanticipated. We just don’t know the exact date. Which is great. And although I don’t claim to be a doctor, I’m also relatively certain that unexpected deaths happen even when we erect manmade term limits. People do not die chronologically, I’m afraid.
So when The Economist contends that Americans should be “[b]reathing new life into the nation’s highest court more often,” they are not reflecting the Founders’ intent that justices serve “during good Behavior” or Alexander Hamilton’s contention that “nothing can contribute so much to its firmness and independence as permanency in office.” When it comes to the institution that was specifically designed to preserve tradition through constitutional law (rather than, say, compliance to emotion), the “democracy of the dead” is far more vital than adding new life.
Also, if you’re arguing in good faith for preserving the independence of the Supreme Court, you probably should make an appeal to popularity to bolster your point. Here’s Vox:
The public largely agrees on the value of term limits for Supreme Court justices. A Reuters poll last year found widespread support for term limits. Sixty-six percent of Democrats and 74 percent of Republicans wanted 10-year terms for justices, and 80 percent of those identified with the Tea Party supported term limits.
So what? Other polls show that only 62 percent of voters understand that the Supreme Court determines the constitutionality of legislation. Fewer than half of Americans know that split decisions in the Supreme Court have the same effect as 9-0 ones. If you truly believe our institutions are “increasingly fragile,” this may be one reason.
Whatever the case, it is needlessly counterproductive to turn the institution least answerable to democracy over to an increasingly divided “Washington” more often than necessary.