An 18-Year SCOTUS Term; Can It Happen?

Orin Kerr twitted his proposed 28th Amendment to the United States Constitution.

The key provisions for the long term are sections 1 and 2, with section 3 needing some work, as well as leaving a bunch of other issues out, such as how we would transition from our current life-tenured appointment to the new 18-year term. My reaction to Orin’s idea was short and a wee bit snarky.

There’s nothing like amending the Constitution at a time when calm minds and unity of purpose prevail.

Since the passing of Justice Ruth Bader Ginsburg, the legal and political world has been beset by all manner of craziness, from hypocritical shrieks and finger pointing to raw power plays to abject denial of reality. That the death of one justice, and the appointment of another, would give rise to this level of anger and hysteria is a reflection of the sorry state of our tripartite government.

A president so loathed, a Congress so paralyzed, that the significance of the Supreme Court’s putative split between its liberal and conservative members, a split that exists more in people’s fevered dreams than in the reality of the court’s rulings, is paramount. The Supreme Court should never be this important. The survival of a nation was never meant to depend on a court. And most importantly, the Supreme Court was never created to be the government of last resort.

My snarky reply to Orin wasn’t intended to suggest that the core idea of reforming the terms of Supreme Court justices wasn’t a good and worthy one, but that we’re at a moment in time when the overarching concern is less “what’s good for the nation” or even “what’s the best way to handle Supreme Court nominations to avoid this untenable level of partisanship.” When I wrote “unity of purpose,” I meant a sincere goal rather than what’s motivating almost all current discussion: How can I game whatever arguments I can muster so that either my team wins the game or the other team loses.

Pack the court? Add Puerto Rico and District of Columbia as new states? Indict Barr to tie up the Senate? All these proposals are motivated at the moment to game the current Senate and Executive’s position of power. If they have the votes, they can do as they please no matter what it is. If you don’t have the votes, you come up with ways to undo, circumvent, outdo what they can do because they have the power to do so.

The point is that any proposal, standing alone, might well be a good or bad one, and will have arguments for and against it. But at this volatile moment, they’re not being raised and argued because they’re good ideas, but because it’s a way to fight the current Battle of Hypocrites’ Hill. And if the tables were turned, there is little sincere doubt that the teams would flip on a dime, switch their positions and arguments with the same pretense of passion and sincerity as they display now. Changing the heads on the corpses, as usual.

But the 18-year term proposal is hot right now for a slightly different reason than most of the other proposals. It’s not a new idea and gets raised every time a Supreme Court seat opens, because there is invariably a battle, often a scorched earth conflict that inflicts a terrible cost on the person who subjects themselves to public scrutiny and hatred. And the will to address the problem fades as quickly as it arises after the nomination is confirmed.

We have short attention spans, trouble focusing and the memory of a gnat. As soon as the extremis has past, we’re on to the next catastrophe and the one just past, that consumed every fiber of our being, is ancient history. Until the next time, when we play it out all over again.

Law prof Steven Calabresi has an op-ed in the New York Times, following on a law review article dated 2005 and published in 2006, proposing the switch from life tenured terms of office to 18-year terms, staggered every two years so that every president gets to pick a justice in his first and third year. It’s offered as a mechanism to end the “poisonous politics” of the moment, and to “depoliticize” the Court.

Supreme Court justices often try to retire during the presidency of someone sympathetic to their jurisprudence. Of course, that doesn’t always work: Justice Scalia died after almost 30 years on the high court trying to wait out President Barack Obama, and Justice Ginsburg died after nearly 27 years trying to outlast President Trump.

Over all, though, strategic retirements give the justices too much power in picking their own successors, which can lead to a self-perpetuating oligarchy. The current system also creates the impression that the justices are more political actors than judges, which damages the rule of law. It may even change the way the justices view themselves.

As Calabresi goes on to point out, Supreme Court life tenure leads to all manner of internal gaming, such as justices remaining beyond their intellectual and physical “expiration” date, and assuming a personal self-image of importance far beyond that one would find acceptable in a person holding a position of public trust.

The idea of finally fixing the number of justices to end cries of court packing, and limiting the term of office to one term of 18 years so that every president gets to appoint two justice, has enormous virtue. The collateral questions, how to transition from our current court to the new regime and how to fill vacant seats due to death, disability or resignation, remain problems of a similar magnitude as the current crisis over filling Justice Ginsburg’s chair.

It’s not a question of whether or how it could be done. No doubt it could. If only the decision were made by people with calm minds and unity of purpose, we could fix a lot of what ails us. Unfortunately, it seems we never care enough to do so after the storm has passed.

23 thoughts on “An 18-Year SCOTUS Term; Can It Happen?

  1. Hunting Guy

    From a cynical position…..

    The court is already politicized so maybe the judges could stand for election. It works in several of the states so why not?

    Details TBD.

    Reply
  2. Richard Kopf

    SHG,

    The Fourth Chief Justice of the United States, John Marshall, served from February 4, 1801 to July 6, 1835 when he died at age 79. He was the greatest Chief, and probably the greatest Justice, in our history. Marshall remains the longest-serving chief justice and fourth-longest serving justice.

    As Marshall proves, age is not the problem and judicial life tenure is not the problem. Electoral politics is the problem. Kerr’s proposal, like so many similar ones that have come before, doesn’t fix that problem. It makes it worse.

    All the best.

    RGK

    Reply
      1. Richard Kopf

        So what?

        Kerr’s proposal does not fix making bad appointments. Arguably, and moreover, his proposal incentivizes the term-limited Justices to act more extremely given their limited tenure. Of course, we could also shit can precedent–on second thought that might even be fun!

        Reply
        1. SHG Post author

          Can anything fix making bad appointments? But you make an excellent point about what a justice might do in the final year(s?) of his or her term. With nothing to lose, might as well go wild. Then again, we can always hope they’re better than that. There’s a certain presumption that we’re constrained to accept or it all falls apart.

          Reply
          1. Richard Kopf

            Scott,

            Answer to your first question: Of course not. That’s the point kiddo.

            Secondly, the presumption you so perceptively stress is in my view the reason for doing nothing.

            What has worked relatively well for a long time, but because it has not worked perfectly (ever) is no reason to swallow academic ejaculations.

            All the best.

            RGK

            Reply
  3. B. McLeod

    It’s hard to see how they could get past their mental or physical expiration dates. They would have to be so far out of it that they couldn’t direct their clerks.

    Reply
      1. John Barleycorn

        Did you not pay attention during the last conformation hearing esteemed one?

        Drooling is now an affirmative demonstration of ones intellectual powers. Heck even the Judiciary Committee has gotten in on that game…

        It is, of course, as salaciously slanderous as it is dangerous, that there drooling for power game. But, with any luck, eventually the inquisitors as well as the future nominees (some who may only be in their 20’s here shortly) might literally start stroking out at the hearings.

        But that might actually be a good thing and at long last put all parties involved back into their “happy and tranquil” places, even if they remained trapped inside their own constitutional kaleidoscopic fears forever…

        And after all, it might actually be more informative for the watchers of the court to pay attention to the drool wipes deployed by the supremes’ clerks as opposed to everyone counting the number of words Clarence utters…

        Heck, I bet there will even come the time when the clerks start using the same handkerchief between the ideological wings of the bench while wiping away the drools, so as not to confuse the TeeeVeeee pundits while clearly demonstrating to the public the unity, love, and humanity, behind the “power”.

        Reply
        1. Howl

          I’m starting to find some of JB’s posts comprehensible and humorous.
          What does that mean? Have I been hanging out at this hotel for too long?

          Reply
  4. Erik H

    I was surprised Orin pushed it out without a lot more editing: He’s smart and a great writer; that was enormously underdeveloped; and it isn’t as if it is a new thought.

    But you’re right: It won’t happen. The problem is that everyone views this as “how do we change the current situation” instead of “how do we create a good future situation.” Absent any willingness to look to the long-term objectively, it’s hard to accomplish.

    Truly good/fair systemic planning requires a Rawlsian veil of ignorance. Without assuming you would be in the majority, or even a plurality, what would be most fair? What powers do you want, assuming they will accrue to your worst political enemy? How can you best ensure that the country will be better 20 years from now as a result of your actions?

    In that ability, the Framers were light-years ahead of our current “leaders.”

    I remain convinced that the only way such major changes would be politically feasible is to time-delay things, such that neither party would be at all confident of being in power by the time the changes took place. That would tend to push things in a more moderate direction.

    Reply
  5. Richard Parker

    Drop Section 3 and you have a winner. What is a “Party”? With an impending court nomination, a party could splinter into multiple factions.

    Reply
  6. phv3773

    Are political parties written into the Constitution anywhere else? It would make the Constitution dependent on legislative to some extent, and State legislation at that.

    Reply
    1. SHG Post author

      They are not and never should be, even if it seems impossible today of conceiving that there will be anything but the current duopoly. Things could always change.

      Reply
    2. Erik H

      It’s as if Orin forgot there is also a House, which is (by design) much more direct-democracy than the Senate. If the goal–which is not at all clearly a good one–is to divest the Prez of nomination rights and to have the nomination controlled by parties (akin to more direct democracy) the House would be the obvious nominator.

      This isn’t necessarily the best option either, but it’s a hell of a lot better than “the party with the most Senate votes, assuming there is still a duopoly of power.”

      Reply
  7. civil truth

    While perhaps a bit snarky, your response to Orin is precisely the reason why, regardless of the merits of his proposal, Orin’s proposed amendment will go nowhere.

    For the framers of the Constitution intentionally set the conditions for proposing and ratifying amendments so high (especially the 3/4ths of the states requirement) so that it would take a true national consensus (i.e. regionally-diverse supermajority support) for an amendment to be enacted.

    Which in our intensely polarized era with the nation split closely on almost all political controversies means that such consensus is just not going to be there.

    Same reason that efforts by the losing side to propose amendments on contentious issues/SCOTUS decisions almost always historically have gone nowhere.

    Reply

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