Not going to lie, it’s been a little frustrating to see that, when confronted with a constitutional crisis over the future of the Supreme Court, Democrats are mostly split between doing absolutely nothing or giving Mitch McConnell the power to pack the Court “to own the cons.” Which is why I was a little taken aback this morning to find that some people in Congress actually have a head for strategy and have taken the first steps toward building a fight around staggered term limits.
Fix the Court reported this morning that Reps. Ro Khanna, Don Beyer, and Joe Kennedy III are introducing the “Supreme Court Term Limits and Regular Appointments Act of 2020” to institute staggered, 18-year terms for active duty Supreme Court justices. Technically this isn’t the FIRST term limits bill — that came in 1807 — but it’s the first that has any value for our current predicament.
Rather than allow the constitutional fabric of the country to be dictated by a life-tenured proto-nobility, the Court would reflect the will of the voters on a lagged basis. Every president gets two picks per term. Nomination fights are capped by requiring the Senate to vote within 120 days or waive their right to weigh in on the nominee, and senior justices would remain to deal with contingencies.
A term limits proposal may not solve the problems with the Court next year, but it solves the problems for the next 50 years which is far more important. The fact that term limits — as opposed to court expansion — enjoys broad public support and influential media backing from the Washington Post, Boston Globe, and L.A. Times makes this the most strategic fight for Democrats to take on.
While there will be constitutional pushback on whether or not this would impinge on the definition of “good behavior,” let the Supreme Court tell that to an American public heavily in favor of this legislation. Consider the institutional damage of that opinion. “Yeah, we know you all voted for this, but since we want to have power forever we’re ignoring you”? I’m not sure as many justices are willing to unleash that firestorm as one might think.
That is, if a case even ever got brought. Who, exactly, has standing, as this Court has defined it, to bring that case? I’m not sure even the notoriously lax ethical rules of the Supreme Court would allow a justice to rule on a case they brought themselves and beyond that, I’m not sure who could file a hypothetical case like this.
And that’s before we consider straight-up jurisdiction stripping the Court from hearing challenges to this statute — a clause that’s not in the current bill but looms as a perfectly constitutional remedy to any mischief from any entrenched justices who wouldn’t want to go.
Court expansion advocates will surely complain loudly about this bill as “giving up” for trying to take power away from the president and Senate rather than embrace wildly oscillating Supreme Courts flipping precedent every election until the Republic falls. For these folks, the trauma of the slow and anti-majoritarian conservative takeover of the Supreme Court — with five justices soon-to-be on the bench who were appointed by presidents who came to office without winning the popular vote(1) — has created the same mania that drives Wile E. Coyote. And, like the Coyote, they are adamant that this time blowing up the rules because they have the numbers will never backfire on them spectacularly.
But don’t give into that thinking. It’s time to fix this forever.
Obviously this bill is going nowhere with the current Senate. But bills like these are important because they generate steam among the public who — to the extent they even know what the Supreme Court does — mostly ask, “Why do we have anyone get jobs for life in a democracy?”
Which is a pretty good question.
(The bill is available on the next page.)
Earlier: Liberal Calls For Court Packing Gain Steam, And Mitch McConnell Couldn’t Be Happier
(1) George W. Bush’s justices were appointed in his second term where he did win the popular vote… but would he have been there without the power of incumbency? Even if we bracket Roberts and Alito for this discussion, we’re still talking about a third of the Court.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.