Washington Watch | September 2015
By Bruce Moyer
As the race for the White House in 2016 heats up, presidential candidates from both parties are sharpening their aim on the United States Supreme Court as a political target. With criticism directed at “unaccountable justices” making decisions “based on politics and not the law,” the umbrage of political candidates against the high court and its ways is ratcheting up to new levels. The Court’s controversial decisions last term affirming the right of gay couples to marry and upholding a key portion of the Affordable Care Act have deepened the intensity of public feeling about the Court.
Conservative disappointment over the recent landmark decisions, joined by continued liberal frustration over the Court’s 2010 decision in Citizens United, are particularly generating new attention on issues of judicial administration that were barely considered in the past. Whether justices should enjoy lifetime terms is beginning to become a subject of debate on the campaign trail, despite the U.S. Constitution’s guarantee of lifetime tenure to Article III judges and its inextricable link to the independence of the federal judiciary, a design of the Founding Fathers.
Presidential candidates Mike Huckabee and Sen. Ted Cruz (R-Texas) have argued most notably for constitutional changes that inject more new blood and accountability into the Court. Huckabee, interviewed on CNN’s State of the Union on July 6 said “I just think that people, whether they’re in the executive branch, legislative, or judicial branch, shouldn’t see their appointment to office as … permanent, no accountability whatsoever, and I also think when a person can be appointed to the Supreme Court and stay there for 40 years, my gosh, they might have outlived, you know, six or seven presidents during that course of time.”
To break that longevity, presidential candidate Sen. Ted Cruz would subject Supreme Court justices to periodic judicial elections, a practice adopted in some form by 20 states. “The experience of these states,” Cruz argued in a National Review essay, “demonstrates that giving the people the regular, periodic power to pass judgment on the judgments of their judges strikes a proper balance between judicial independence and judicial accountability.” Under Cruz’ proposal, every Supreme Court justice, beginning with the second national election after his or her appointment, would be subject to a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states would be removed from office and disqualified from future service on the Court.
Longer Lives, Shorter Terms?
The dramatically longer life expectancy of Supreme Court justices today, compared with 226 years ago when the Constitution was written, underscores the need for term limits, legal scholar Erwin Chemerinsky argues. Chemerinsky has called for 18-year term limits on the justices. “Supreme Court justices are serving ever longer, with the last four to leave the court having served, on average, for 28 years,” Chemerinsky notes. He projects that if justices Clarence Thomas, John Roberts, and Elena Kagan continue to serve until they are 90, the age at which Justice John Paul Stevens retired, they will have been on the bench for upwards of four decades apiece.
“Life tenure may have made sense in the early days of the republic, when demographics (life expectancy in 1800 was around 45) and judicial customs (the nine used to hire carriages and “ride circuit” to stay connected to other parts of the country) differed greatly from today, but in our current circumstances, it is time to consider this (and other) reforms to make the justices more accountable,” says Gabe Roth, executive director of Fix the Court, a group advocating for term limits on the Supreme Court.
Lifetime Tenure for Good Behavior
The guarantee of lifetime tenure for certain federal judges, including the Supreme Court justices, lies in Article III, Section 1, of the Constitution, which guarantees that such judges “shall hold their Offices during Good Behaviour.” The Constitution provides for trial of judges through the impeachment process in the House of Representatives, with removal if found guilty in the Senate. This process of judicial impeachment, Alexander Hamilton argued in the Federalist Papers, represents an “important constitutional check” against any “deliberate usurpations [by the justices] of the authority of the legislature.” Impeachment of a Supreme Court justice has happened once, when the House in 1804 passed impeachment articles against Justice Samuel Chase, but the Senate failed to muster the two-thirds majority necessary for conviction.
While calls for term limits on the justices may grow louder in the coming months, casting aside lifetime tenure would be no easy task. It would require amending the Constitution, for which there are two routes. In one, a super-majority of votes in the House and Senate, followed by the approval of three-quarters of the states, is required. Seventeen amendments have been added to the Constitution since 1791 through this method. The other route involves a Constitutional convention, called by two-thirds of the states, a method never yet employed.
If an amendment were to be ratified about term limits for justices, it wouldn’t be the first amendment to the Constitution about term limits. The 22nd Amendment, ratified in 1951, placed term limits on the office of the president.
Bruce Moyer is government relations counsel for the FBA. © 2015 Bruce Moyer. All rights reserved.