This weekend, America lost a giant: Justice Ruth Bader Ginsburg. An American hero, she was responsible for uncovering that the Constitution protects against sex discrimination. For half the country, she was even more than that. RBG was the woman holding the republic on her shoulders. With her passing, the deepest fears of liberals have come true; in all likelihood, she will be replaced by a conservative justice.
These fears are understandable. Justices have life tenure, and the oldest justice appointed by a Republican president is just 72. Indeed, they frequently wait to retire until their party holds the presidency, as Justice Anthony Kennedy did in 2018. If the current number of justices remains at nine, it’s virtually guaranteed that the court will have an entrenched conservative majority for decades. As many progressives see it, that is an existential threat to Roe v. Wade, the Affordable Care Act, voting rights, criminal justice reform – to the foundation of their country.
This despair points to a larger problem; clearly, our institutions are too fragile when half the country believes their legitimacy hinges on the life expectancy of an 87-year-old woman. It is not stable for the makeup of the court to be determined by the political preferences of justices and the randomness of death. That is not democratic. That is not required of our court to function. For a stronger judicial system, we must demand our elected leaders place term limits on future justices.
One 18-year non-renewable term for justices would be best. Under 18-year, single term limits, each four-year presidential administration will get two Supreme Court picks. In the case of a justice’s early retirement or death, a new justice would only be appointed for the remainder of their predecessor’s term left. No more randomness in the process. The people will always pick the president, and that president will always pick the justices — every four years.
One argument in favor of life tenures is that it protects the justices from being politically accountable for their rulings. Moreover, life tenures give justices enough time to grow and develop expertise over the most difficult legal issues. But both those benefits still exist under a structure of single 18-year term limits. Justices develop extensive experience by serving for over a decade. They’re also insulated from the political pressures associated with having to be reappointed to another term because their term is non-renewable.
As of Thursday, an MULaw Poll found that 74 percent of Republicans, 73 percent of independents and 77 percent of Democrats are in favor of term limits on justices. As early as 2002, in a bipartisan op-ed, law professors Akhil Amar and Steven Calabresi (disclosure: both are my professors) called for 18-year term limits for justices, noting that no major democracy in the world and just one state has life tenure for the judges on its highest court. Justice Stephen Breyer himself has suggested he would support this solution. But despite the widespread support, only one major national political figure openly embraced 18-year term limits: Andrew Yang.
Why such hesitancy from our leaders? Because the plan needs a constitutional amendment, of course! The Constitution requires that justices serve life tenure, and no statute can change that. Except that’s not necessarily the case.
While Article III, Section 1, of the U.S. Constitution requires that justices “shall hold their Offices during good Behavior,” scholars have interpreted this phrase as solely ensuring that federal judges are paid and recognized as judges for life. That doesn’t mean justices have to be assigned cases on the Supreme Court for the rest of their lives.
On federal circuit courts, by statute, most cases are heard by panels that include just three of the many judges appointed to that court. The Ninth Circuit, for example, has as many as 29 active judges. A similar idea could be used to restrict the number of judges hearing cases on the Supreme Court, albeit with larger panels. Legal scholars including Amar and Calabresi have suggested Congress could require that the Supreme Court hear cases in various structures analogous to these panels that would effectively impose term limits.
One proposed solution is that the Supreme Court is composed of a single panel that hears cases. Only justices that have been on the Court for less than 18 years or another benchmark can actually serve on this panel. After 18 years, Justices still get their salaries. They still are recognized as Justices. They could even be given the opportunity to serve on lower courts, a practice called “circuit-riding” that was common in the early years of our country. But they wouldn’t have power over most Supreme Court judgements anymore — except perhaps in the case of a temporary vacancy or recusal. This is entirely possible, given that the Constitution gives Congress the power to construct the organization of the Supreme Court with almost as much latitude as they have over all other federal courts.
Despite these bipartisan solutions, many Democrats have prioritized messaging on increasing the number of justices on the court with a hyper focus on preventing a conservative majority. But that solution presents two new obstacles. First, it might not be politically feasible. FiveThirtyEight currently has Democrats favored to take the Senate this fall, but only with an average of 50.7 seats. That means the whole caucus would have to be on board, and that’s not a guarantee with a slim majority. Joe Manchin would have to sell packing the Court to socially conservative West Virginians who put him in office. And multiple 2020 Democratic Senate candidates have already come out against court packing.
Second, there’s the fact that court packing doesn’t address the shortfalls of our current life tenure system for judges. Battles over Supreme Court nominees will always be fraught and hyperpartisan if decades-long control of the court is up for grabs. The next time Republicans get power, they will inevitably pack the courts themselves.
Yalies will undoubtedly be passionate in their activism to prevent Justice Ginsburg’s seat from being filled before a new president is installed. But what do we want the future of the court to look like beyond the 2020 election? Think bigger for a more small-d democratic court that can last the test of time.
JACOB HUTT is a senior in Silliman College. His column runs on alternate Fridays. Contact him at firstname.lastname@example.org.