The notion that Supreme Court Justices, once appointed by the President and confirmed by the Senate, serve for life is as old as the Constitution, which dates to 1788.
The death of Supreme Court Justice Ruth Bader Ginsburg and the Senate’s rush to fill her seat before the November General Election has sparked renewed interest in limiting the terms of Supreme Court Justices. Ginsburg’s death leaves the nine-member Court with eight Justices: three liberals and five conservatives.
However, Mitch McConnell (R-Kentucky) played power politics in 2016 to prevent President Barack Obama from appointing Judge Ed Garland to the high Court. McConnell’s power-play delayed a vote until after Obama’s term expired — destroyed any sense of congressional collegiality by confirming Brett Kavanaugh.
Then McConnell’s recent high-jinks. Within weeks of the General Election to fill a vacancy on the Court, opening the door for Judge Amy Coney Barrett, has caused many in the progressive community to get creative in finding ways to limit the power of a political party to steal two Supreme Court nominees.
During the last term of Court, Chief Justice John Roberts, a conservative, voted with the liberals on several significant cases. Thus, setting up the possibility of a deadlocked bench at the beginning of the new term in October, if Ginsburg’s seat remains vacant before the next President takes the oath of office.
Couple the unfortunate departure of Ginsburg from the Court and the fact that Republican Senators stalled Obama’s opportunity to appoint a replacement for Anthony Scalia in 2016 until after the election, one can understand why Democratic lawmakers are looking for ways to get more liberal Justices appointed. In the last four years, McConnell changed Senate rules twice to permit a Republican President to nominate a conservative to the Court.
Democrats are screaming foul. Without a doubt, something must happen to prevent one party from callous capriciously stacking the Court with conservatives or with liberals for that matter. The Supreme Court works best when it has a healthy mix of conservatives and liberals. Their decisions are crafted more to the center than leaning too far to the left or right. Republicans are on the verge of a 6–3 majority.
Does the question become what can be done constitutionally to prevent the abuse of the Senate’s lawful mandate to confirm Supreme Court appointments?
Two plans have surfaced in recent years. One calls for the expansion of the Court from nine members to 29 members, virtually ensuring the Court will never reach a consensus on the significant issues of the day. There is little question that Congress has the right to add Justices to the Court. However, will more Justices solve the problem, or will the added number complicate matters and render the Court powerless to interpret laws enacted by Congress. After all, each butt seating on the bench comes with its own opinion.
The other idea, which is gaining traction, would limit the terms of Justices, allowing each president to select two Justices during a four-year term.
The proposed Bill was prepared by Representatives Ro Khanna (D-California) and sponsored by Representatives Don Beyer (D-Virginia), and Joe Kennedy, III (D-Massachusetts). This Bill’s stated purpose is “To establish a process by which the appointment of Supreme Court Justices can occur at regular time intervals and for other purposes.”
Section 1, the Short Title, of the act says it all: “This Act may be cited as the ‘Supreme Court Term Limits and Regular Appointment Act of 2020.’”
Does the Constitution Allow Congress to alter life tenure for Justices of the Supreme Court?
Proponents of statutorily eliminating the lifetime appointments on the Supreme Court believe the Constitution supports their view. They contend the Constitution does not prohibit legislation to regulate the Court and cite a 1937 act that allowed retired justices to sit on lower courts after retirement.
Worth noting is that these justices ended their lifetime tenure on the Supreme Court through retirement and, in essence, were seeking the ability to continue to work in some capacity in the federal court system. There is only a slight difference from when Justice Sandra Day O’Connor resigns her lifetime appointment in 2006 to take care of her sick husband. She left the Court in its entirety. The difference is the 1937 measure permits Justices to retire to an inferior court to live out their remaining time on earth.
Moreover, Gabe Roth, executive director of Fix The Courts, argues that since 1954, in the lower courts, rules permit district and appellate court judges to transition into senior status once they reach a certain age.
This analysis is a proper construction of a portion of Article 1, Section 8. However, this section does not grant Congress the power to eliminate life tenure under Article III, Section 1 for Supreme Court Justices, that is, I contend, without amending the Constitution.
The Constitution does prescribe a method to terminate the lifetime appointment of a Supreme Court Justice. That method is impeachment.
Article III of the US Constitution created the Supreme Court and gave Justices and other federal judges a lifetime appointment. Section 1 states in part, “… The Judges, both of the Supreme Court and inferior Courts, shall hold their Offices during good behavior…”
The Framers sought to create a supreme judiciary independent and not subject to the whims of a chief executive like judges in England were subject to the capriciousness of the “crown.”
Eliminating the requirement to stand for an election for a term specific was the Framers’ way of ensuring the autonomy of the nation’s top Court. So, they made it hard to challenge the authority of the Court with the “good behavior” clause.
Removal of a Justice from office via impeachment is a possibility. Impeachment requires scandalous behavior proven before a trial in the Senate. While impeachment is an unlikely remedy, it nevertheless exists to check a flawed Justice.
In the history of the Court, only one Justice has stood for an impeachment trial.
In the early days of the Republic during the Thomas Jefferson administration, Associate Justice Samuel Chase, an avid Federalist, clashed with the “Jeffersonian Republicans” in the Senate over Chase’s handling of treason charges leveled against members of the Senate.
The Constitution, which established the Supreme Court, was ratified in 1788. Six years later, Chase, like Jefferson, a signer of the Declaration of Independence, was appointed to the Supreme Court by George Washington.
He carried his partisanship to the bench and drew the ire of President Thomas Jefferson, who persuaded John Randolph (R-Virginia) to start impeachment proceedings in the House.
Chase was accused “of continually promoting his political agenda on the bench, thereby ‘tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partisan,’” according to records of the United States Senate.
This 18th-century argument sounds much like what is taking place in the Court and Congress today.
At Chase’s trial in the Senate, House Managers failed to obtain a two-thirds vote for conviction on any of the charges. And not only was Chase released from the authorities, but this trial also set a precedent that stopped congressional oversight based on disagreements with opinions espoused by a Justice and insulated the judiciary from further congressional attacks based on partisan positions.
Much to the chagrin of Amy Coney Barrett’s opponent’s her opinions to the far-right of Ginsburg, the woman who opened every door that Barrett has walked through, will not become a cause to keep her off the court. Women advocates will have to live with Barrett’s pronouncements like Blacks have learned to live with the right-wing interpretation of Justice Clarence Thomas, who currently holds the affirmative action seat on the Court.
In addition to an appointed federal judiciary, the Constitution required the appointment of senators by the legislature of each state (Article 1, Section 3), while requiring members of the House of Representatives to stand for election every two years ( Article 1, Section 2).
By requiring senators and Supreme Court Justices to be appointed rather than face an election, the Framers signaled that these two posts were unique and set apart from the executive branch and members of the House of Representatives. Therefore, based on Article III, Congress cannot legislate fundamental changes to these two posts without a constitutional amendment.
Towards the end of the 19th century, much like the partisan divide in the US Congress today, many state legislatures were divided with one party controlling the House and the other the Senate. This stalemate created a situation that prevented a consensus on the appointment of a senator when a vacancy occurred.
The US Senate could go long periods with vacancies because the state legislatures could not agree on an appointee. To solve this problem, the Senate did not resort to legislation to require the direct election of senators, as Khanna’s Bill proposes; it moved to amend the Constitution to solve the stalemate in state legislatures.
On April 8, 1913, three-quarters of the states ratified Amendment XVII to allow for the direct election of senators.
Roth believes Congress can change Article III.
He writes: “Congress has, through the years, used its constitutional authority to reform the roles and responsibilities of our courts. So lawmakers are well within their rights to reconsider the role of our nation’s top jurists as a means to restore confidence in the high court and the rule of law…” (Fixthecourt.com/2020/09, First-Ever Measure To End Life Tenure on the Supreme Court Via Statute).
Article 1, Section 8 grants Congress the authority “To constitute Tribunals inferior to the Supreme Court,” and vicariously, the power to regulate the life tenure of judges of inferior courts. Therefore, Congress had the authority to create senior judge status to accommodate aging jurists, which they did in 1954.
Although, Article 1, Section 8 addresses “Tribunals inferior to the Supreme Court.” One cannot build a bridge that stretches from Article 1 to Article III, Section 1, to enable Congress to enact term limits on the Supreme Court without putting an amendment for a vote before the American people.
Khanna drafted a fair Bill.
Khanna balances the equities of all future presidents. It will ensure that every president can influence the interpretation of congressional enactments for a short period. It is perhaps an idea whose time has come. However, no matter how noble his intentions, I believe the appropriate method to manifest term limits on the Supreme Court is by amending the Constitution.
If Congress moved to amend the Constitution, it would eliminate one particular problem should Khanna’s Bill end up before the Supreme Court. The nine Justices would rule on whether an act of Congress could take away their right to a lifetime job on the Court. My guess is, if the Court could entertain a matter that bears on their tenure, they would rule this legislation unconstitutional.
Harold Michael Harvey is the Living Now 2020 Bronze Medal winner in the category of male memoir for his memoir Freaknik Lawyer: A Memoir on the Craft of Resistance. He is a Past President of the Gate City Bar Association. He is the recipient of Gate City’s R. E. Thomas Civil Rights Award, which he received for his pro bono representation of Black college students arrested during Freaknik celebrations in the mid to late 1990s. An avid public speaker, contact him at [email protected].