When Supreme Court Associate Justice Ruth Bader Ginsburg died Sept. 18, another wave of uncertainty swept the country.
It wasn’t just the question of who would replace Ginsburg on the bench, but who would appoint her replacement and when.
Many want the winner of the Nov. 6 election to replace her. Supporters of current President Donald Trump want him to replace her, preferably before the election. Others are OK with a lame-duck Trump replacing her if it comes to that.
Trump has made it clear that he wants a justice of his choosing on the bench by the election to improve his chance of winning if there’s either a recount or if results aren’t clear when mail-in ballots pour in the days after the election.
As of right now, the situation with the supreme court is creating high anxiety across the country. For many, it’s just another anachronism in the U.S. Constitution that’s been forced into the spotlight. Of all the branches of government, it seems that the one meant to uphold the Constitution has become the one most susceptible to partisan politics and unpredictability. Worse yet, it often feels that it was meant to be that way.
Technically, the justices of the Supreme Court are supposed to uphold the rule of law and protect the rights of Americans enshrined in the Constitution.
As we have found, things often don’t work that way. In many cases, justices are put in the position to remove rights from Americans. That’s especially true in the Donald Trump era where he is appointing judges with a record of fighting against reproductive rights in America. On top of that, his court will likely end health protections for millions of Americans. In the past, we’ve seen the supreme court decide elections and under Trump, that could be a possibility too.
But why are things like this and should they change?
Where do lifetime appointments come from?
The Supreme Court began with a single paragraph in the U.S. Constitution:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
The Constitution doesn’t explicitly say “lifetime” as far as judicial appointments go. It says they can hold their office “during good behaviour.” That’s what is interpreted to be a “lifetime” appointment.
Why was this done?
“That was put into the Constitution to preserve the total independence of the judiciary,” said Northeastern University law professor Michael Meltsner, the George J. and Kathleen Waters Matthews Distinguished University Professor of Law. “Once a justice is confirmed and takes a seat on the court, they’re not beholden to anybody.”
Time has shown, particularly in this era of extreme partisanship, it didn’t quite work out that way. In the modern era, especially under Trump, judges are picked because of their political allegiances. Whether it be to an individual, like Brett Kavanaugh and Neil Gorsuch to Trump, or ideology (Clarence Thomas and Samuel Alito), almost all judges have a partisan interest. The decisions made over the decades have shown this to be true.
Lifetime appointments, particularly with younger appointments, can be a very long time. The longest-serving judge was William O Douglas who was appointed on April 17, 1939, at the age of 40 and remained in his seat until Nov. 12, 1975, leaving at the age of 77. That’s a term of 36 years.
That’s a long time. Although not as common nowadays, many people born the year he was appointed had become grandparents by the time he was out of the court. Other modern judges who have served more than 30 years on the bench include Anthony Kennedy, Byron White, William Rehnquist, Hugo Black and John Paul Stephens. On Oct. 23, 2021, Thomas will hit the 30-year mark.
Considering their ages, it’s not hard to see Trump’s appointees staying on the bench at least that long. His three appointees (if he’s successful at appointing a justice before his term ends) will be deciding cases well into the 2050s, a time when America will not only cease being majority white but also reflect a massive change in America’s ideological bent. Extreme conservative judges holding the majority on the bench could potentially restrain progress as far as climate change, health care and economic justice in the U.S., not to mention individual liberty for women and minorities.
Also, take into consideration that at age 72, Thomas could easily serve another decade, if not 15 years if he holds up like Ginsburg. The same could be said of Alito, 70, and John Roberts, 65.
That’s a scary thought. America could be stuck in neutral (or even regress) if we are in a situation that the elected lawmakers become more progressive and the judiciary stays extremely conservative. It could mean every progressive piece of legislation is challenged and overturned by the minority party and rural states where the majority of Americans don’t live.
So, what can be done?
Why not limit terms?
How long should a term be? How many should they receive?
Another question to ask is “how many appointments should a president be allowed to make in a single term?”
Trump is almost certainly appointing one-third of the court in a single term. It’s possible, but not likely, another judge or two might die or have to retire due to health reasons. It’s one of those factors you just can’t predict. This pretty much means that we have a cornerstone of our government that despite all appearances, is inherently unstable. If a strong earthquake were to hit and all the judges crushed to death under the weight of a ceiling, then a single president could appoint all nine members of the court and all of them could be there for 30-plus years.
That’s just too much power for one person or party. A single mass casualty could lead to Trump or a future president setting the future direction of the U.S. in stone.
But how long should a term be?
That can be tricky. There are nine justices (for now), so you are stuck with really frequent or infrequent appointments.
You could make a term nine years, which would mean that the president would replace or reappoint justices every single year. That would mean a nomination process that can range from a few days to several months. It would also mean that a single president could appoint up to eight justices if they served two terms. It would also raise the ceiling as far as the age of an appointment, opening the doors for those older than 60. Also, such frequent appointments could lead to instability, resulting in radically different decisions on constitutional issues within the span of half a decade.
The other reasonable number is an 18-year term, which means a replacement or reappointment ever two years. That means a single president could appoint up to four justices if they served two terms. It would also lower the ceiling for appointments in the minds of many, potentially lowering the comfort level to the lower 50s, if not younger. But, it would also mean a more stable court and smoother transition compared to an appointment every year.
If we had gone by 18-year terms since Congress raised the numbers of justices to nine in 1869, there would have been 76 appointments to the Supreme Court. Of those, 43 would have been made by Democrats (if you count Andrew Johnson who was elected under the National Union ticket) and 46 would have been made by Republicans. In 2020, we would have seen a court made up of five Republican-appointed justices (three appointed by George W. Bush and two by Trump) and four Democrat-appointed justices (all appointed by Obama). There would only one period of five years (1947–1952) that all nine judges would be appointed by a single party (Democrats under Franklin Roosevelt and Harry Truman).
But why would you want limits in the first place?
Because it creates predictability. Taking Ginsberg as an example. Her advanced age caused a lot of stress. So much so that people wonder why she didn’t step down while Barack Obama was President. Because she chose to stay, there was great anxiety about her surviving through the Trump years. When she didn’t that anxiety turned into outright panic. When you have mass panic, all it does is create stress on society.
Had Ginsberg been appointed to an 18-year term, her replacement would have been picked by Obama in 2011 and they’d be somewhere in or near the middle of it now.
Which begs the question, if we adopt term limits, what happens when a judge dies or resigns unexpectedly?
That’s tricky, but there are options. A seat could remain empty until it’s time to fill it. There have been times the supreme court has functioned with fewer (and more) than nine justices. Another option is appointing another justice to finish the rest of the term.
Of course, appointing another justice in such a situation could be contemptuous and wind up being a process that takes forever, particularly when partisan politics are involved. A way to expedite that process could be to have the sitting president make that appointment and allow the surviving justices themselves to approve the appointment. Another option is just for a president to appoint alternates during their term, but that could be another one of those processes that drag out with heavy drama.
This leads to the second reason for term limits for Supreme Court justices: It curtails the power of a president. If Trump gets another term, it’s likely Alito and Thomas will voluntarily step down to allow for conservative appointments. Trump could potentially replace Justice Stephen Breyer, who is 82 years old, creating a 7–2 court for the next few decades.
That means Trump will be influencing the course of America long after he’s in the grave.
Troubling thought, huh?
Not an easy change to make
In the end, one of the cornerstones the U.S. republic is the Supreme Court. Like the other cornerstones, the legislative and executive branches, it looks like extreme partisanship is slowing chipping away at it. To make sure it stands for another two centuries, changes need to be made. Those changes need to reflect the reality of the current age while at the same time reining in its partisanship so the constitution itself isn’t weaponized.
Limiting the terms of Supreme Court justices will likely require a constitutional amendment. That can be a very long process.
First, two-thirds of both houses of Congress can vote to propose an amendment, or two-thirds of the state legislatures can ask Congress to call a national convention to propose amendments. Then three-fourths of the state legislatures must approve them, or ratifying conventions in three-fourths of the states must approve them.
The Supreme Court has said that ratification must be within “some reasonable time after the proposal.” The period set was seven years, but there has been no determination as to just how long a “reasonable time” might be.
The question “is the will there?” If there’s no will to change, then expect the courts to be further weaponized beyond the point they already are. The current state of “liberal” and “conservative” federal courts from the top to bottom is not one that can last, particularly when sides can go “judge shopping.”
So the options are “change” or “decay.”