Maybe it was taken for granted that appointment to the Supreme Court would be the crowning glory on a distinguished legal career, such that the youthful age of a nominee wouldn’t be gamed to seize control for too many decades. Maybe it was the expectation that these geezers wouldn’t live that long anyway. But regardless, life tenure was the choice made in the Constitution for Supreme Court justices.
Is this the source of our current insanity, doing anything and everything to undermine the integrity of nominees to the Court because they’re there for life?
No other major democracy has lifetime appointments to its highest court. Only the United States does, and it creates all kinds of problems.
This is an odd way to raise the question. Some might view the United States as the leader rather than the follower. But how does it create “all kinds of problems”?
For one, our system often does not respect the will of the people. Rather than the Supreme Court’s makeup being determined by elections over many years, it’s based on a combination of those elections and the randomness of how long justices live. Jimmy Carter was unable to make a single nomination to the court because no justice died or retired during his four-year presidency. Richard Nixon filled four seats during his five-and-a-half years as president.
This isn’t exactly an argument, no less a good argument. The Supreme Court is expressly crafted to not respect the will of the people, to not be subject to the tyranny of the majority so that it can protect the rights of the hated, the minority, without fear. That one president may have no opportunity to nominate a justice, while another has multiple nominations, is a consequence of this critical point, that the Court is meant to be immunized from democracy so that the will of the people, say to criminalize abortion or keep “separate but equal” the law, doesn’t prevent the Court from rendering unpopular decisions because the Constitution requires it.
This unfairness born of randomness isn’t the only problem. Given the deep partisan polarization in America, lifetime appointments have also turned confirmations into epic political battles. That’s why the Brett Kavanaugh process feels so momentous. It’s why the Merrick Garland process — or the lack of one — still enrages so many people.
“It makes the stakes too high,” the political scientist Lee Drutman wrote this summer in Vox. “So here’s a simple idea to dial down some of the destructive warfare of the Supreme Court confirmation process: term limits for Supreme Court justices.”
If you were waiting for a rational connection between the argument and the solution to be drawn, you’re out of luck. This is as far as David Leonhardt’s deep thoughts go. The implicit notion is that if every president gets to pick at least two justices, then the pressure is off, as there will always be a new opening two years away.
And so what? These doesn’t change the potential of a president from the horrible other party being elected to succeed another president from the horrible other party, such that the horrible other party gets to load the Court with its horrible choices of justices. This doesn’t mean your good party will command a majority with its new wonderful choice of justice. It takes a majority, kids, and there’s no promise of a majority. Ever.
But most significantly, it would give rise to the new gamesmanship, where the new justice would be chosen to create that possible majority and undo all the terrible things that other horrible party did when it had the majority. It would turn the law into a see saw, where constitutional rights, precedent, stare decisis, would be rationalized into and out of existence when the next crew came aboard.
So term limits are a bad idea? Not necessarily. Gamesmanship happens on the back end as well as the front. Beyond the obvious, that minds and memories start to fail, sometimes imperceptibly and sometimes blatantly, justices hold on to their seats despite knowing they’ve reached their expiration date in order to prevent a horrible president from filling it, or to make sure a good one gets to do so. If they’re still fully capable, then that’s merely a consequence of the system. But if they’re no longer mentally up to the job, sticking around to game the next justice while lacking the ability to serve presents a problem.
But then, this still doesn’t change the fact that term limits won’t ameliorate the outrage and insanity of a potential majority that won’t be to one’s liking. That’s why we hold presidential elections, even if they don’t necessarily turn out the way we think they should or kismet keeps some old geezer alive too long.