October 23, 2014

Supreme Court Term Limits: Pursuing Apolitical Predictability (Part 2)

Chief Justice John Roberts, filibuster, filibuster reform, Term limits

by Jason Steed, Associate at Bell Nunnally, and president of the Dallas-Ft. Worth Lawyer Chapter

In part 1, I tried to briefly explain why the argument for term limits should be focused on the nonpartisan value of increased apolitical predictability in the Court’s appointment process. Justices shouldn’t be tempted to base their retirement decisions on partisan politics, and we shouldn’t be left to speculate wildly about when the next justice might retire—or about how many appointments the next president might get.

But once we agree term limits are a good idea (and 70% of the public agrees on this), we must shift to the practical concerns that surround the actual implementation of term limits. Right off the bat, at least four questions (or problems) arise:

1.  How long should the term limits be?

2.  What about the filibuster and other attempts to deprive a president of an appointment?

3.  What about the role of Chief Justice—how does that work in a fixed-term system?

4.  How do we transition? That is, how do we impose fixed terms on nine sitting justices who everyone expected to have lifetime appointments?

Now, I’m no scholar on these matters, and I assume others have addressed them already, in one way or another. But here are my thoughts:

1.  18-year Terms.

My sense is that a consensus has emerged, regarding the optimal length of term limits, so I won’t spend much time on this. The best answer to the question “How long?” seems to be 18 years. This is long enough, but not too long. And the number 18 allows us to stagger the terms of nine justices so that someone’s term will end every two years. This means every four-year presidential term can include two Supreme Court appointments, which is reasonable, fair—and predictable.

2.  No More Filibusters.

If we schedule Supreme Court appointments every two years, so that every presidential term contains two of them, sooner or later we’re bound to have a senate that tries to block a president’s second appointment long enough for the president to leave office with the vacancy unfilled—giving the new incoming president an extra appointment. We can’t allow this sort of thing to happen.

One way to discourage this is to schedule the staggered terms so they expire every odd year—or the first and third years of each presidential term. For example, the president elected in November 2020 would have Supreme Court appointments in 2021 and 2023. It would be very difficult, politically, for the senate to continue blocking an appointment made in early 2023, through the November 2024 election.

But surely this won’t be enough to stop some senators from trying. So for good measure we should simply put an end, once and for all, to any method of blocking judicial appointments. Some sort of vetting process might still be appropriate, to ensure that nominees are qualified and that the appointment has some basis in merit. But the political or ideological motive to block appointments should be greatly diminished, with the imposition of term limits, because we’re no longer talking about an appointment that could last 40 years. So under the new term-limit system, the new rule should be that all (vetted) nominees get an up-or-down vote. End of story.

3.  No More Longterm Chief Justices.

If we impose staggered 18-year term limits and we eliminate the politicized blocking of nominees, we’ll greatly reduce the partisan battles that occur over Supreme Court appointments. And we’ll equalize the impact that any one presidency can have on the Court’s composition. But there’s still the problem of the Chief Justice.

The Chief Justice plays a powerful role on the Court—indeed, the most powerful role. That’s why we refer to “the Warren Court,” “the Rehnquist Court,” and “the Roberts Court,” and books are written about the ways in which chief justices have used their power to shape the Court, to influence the law, and to thereby change the nation. Both sides—progressive and conservative—should be able to agree that no single, unelected person should have so much power for decades on end.

So why would we adopt a new term-limit system designed to increase stability and predictability, to de-politicize the appointment process, and to reduce the longterm influence of individual judges—only to continue to attach the office of Chief Justice to an 18-year appointment on the Court? Does it make any sense for our new system to permit presidents who just happen to be elected at the right time in history to install a single individual in the most powerful role on the Court for the next 18 years? No. As long as we’re changing the system, let’s change the system.

I think every justice on the Supreme Court should have the opportunity to serve as Chief Justice, for the last two years of the 18-year term, when he or she is the most-senior justice on the Court. In this way, the office of Chief Justice would be filled by succession: the most-senior justice would be the Chief Justice, and when that person’s term ends and they leave the Court, the new most-senior justice becomes the new Chief Justice.

No more heightened political battles over filling the most powerful seat on the Court. No more 20- or 30-year reigns by unelected judicial monarchs. Just a two-year gig that every justice gets at the end of their term.

4.  Just do it.

Some think the trickiest piece of the puzzle is figuring out how to transition to the new system without everyone getting angry over how the transition will affect their darlings. There’s probably no way to make everyone happy on this score. But it’s important to recognize that both sides will be affected. Imposing term limits means cutting short the terms of the four younger justices who each could have 20–30 years left in them. But this affects both the conservatives (Roberts & Alito) and the progressives (Sotomayor & Kagan). So there’s nothing lopsided about it.

As for the five older justices, they’ve each already been on the Court for more than 18 years: Scalia (28), Kennedy (26), Thomas (23), Ginsburg (21), and Breyer (20). Forcing these justices to end their terms at a scheduled time, which won’t come for several more years, shouldn’t be a problem. After all, if we’re going to decide collectively that 18 years is long enough, then we can say without reservation that these justices have already served long enough.

Thus, the best way to implement the term limits is to simply implement the term limits. As soon as possible. Ideally, we would start in 2017, in the first year of the new president’s first term.

Of course, practically speaking, that’s not going to happen. It’ll take a few years to pass and ratify a constitutional amendment eliminating life tenure, and to pass legislation detailing how the term limits will work. But let’s be optimistic and say that term limits become a minor election issue in 2016, and we’re able to accomplish all this in time for the new system to take effect on January 1, 2021 (after the 2020 election).

The newly elected (or re-elected) president could make the first scheduled appointment to replace the most-senior justice in 2021. Assuming only Ginsburg retires before the sitting justices see the writing on the wall and decide (or agree) to hang in there until their new fixed terms come to an end, the scheduled retirements/appointments would look like this:

2021 – Scalia’s term ends (after 35 yrs); Kennedy becomes CJ

2023 – Kennedy’s term ends (after 35 yrs); Thomas becomes CJ

2025 – Thomas’s term ends (after 34 yrs); Breyer becomes CJ

2027 – Breyer’s term ends (after 33 yrs); Roberts becomes CJ (again)

2029 – Roberts’ term ends (after 24 yrs); Alito becomes CJ

2031 – Alito’s term ends (after 25 yrs); Sotomayor becomes CJ

2033 – Sotomayor’s term ends (after 24 yrs); Kagan becomes CJ

2035 – Kagan’s term ends (after 25 yrs); [Ginsburg replacement] becomes CJ

2037 – [Ginsburg replacement]’s term ends (after 18–20 yrs); transition complete

As you can see, in the transition to the fixed-term system, all the sitting justices are still sitting for longer than the newly prescribed 18-year term. That ought to be enough to quell concerns about anyone’s term being “cut short.”

In part 3: some fun with alternate histories.