Hiltzik: The Supreme Court needs mandate limits

The Supreme Court’s now confirmed intention to overturn the secular protection for the right to abortion in Roe vs. Wade is fueling the debate on how to curb the extreme conservative slant of the court.

The extension of the court beyond the current complement of nine judges was long the most discussed option.

However, another idea could take hold: eliminate the right of judges to lifelong appointments by imposing a time limit. This option, which was discussed for decadesreceived his the last broadcast in March at a round table of law professors sponsored by Sanford Levinson of the University of Texas School of Law.

“Lifetime term today means a significantly longer term than it meant in 1789.”

– Steven G. Calabresi and James Lindgren, Northwestern University

“He’s saying that we all seem to be completely comfortable with the idea of ​​term limits,” Levinson wrote after the event. “It is becoming increasingly difficult to find someone who genuinely defends the truly exceptional national team as ‘necessary’ or even ‘correct’ American practice of “full life” mandate that allowed John Paul Stevens to serve for 34 years until he turned 90. “

Levinson is right. The Founding Fathers almost certainly did not expect Supreme Court justices to serve that long, and for most of American history they did not.

The average tenure in the field was 15 years until the 1970s, when it rose to almost 26 years. In 2005, the average age of judges at death or resignation was nearly 79, a record.

“Lifetime term today means a significantly longer term than it meant in 1789,” Steven G. Calabresi and James Lindgren of Northwestern University observed in 2015. The average has clearly increased since then: Ginsburg died in office at 81, Antonin Scalia at 79. Stephen Breyer retired this year at 83 and Anthony Kennedy in 2018 at 82.

The trend is an artifact of better health care. The average age of Supreme Court justices at the time of their appointment has remained stable from the late 1700s to around 50-55 years, but life expectancy has since skyrocketed.

Lifetime term for judges not only makes the United States an outlier globally, Levinson wrote, but sets the federal government apart from states, only one of which (Rhode Island) grants supreme court justices a lifetime term. . In all other statesthe high judges either have fixed terms or are required to resign at the age of 70.

There are pros and cons to both options for remodeling the pitch. Duration limits seem to be more popular than the courtroom expansion: Among interviewed in a Morning Consult / Politico poll66% are in favor of the mandate limits for judges against 21% against them, while only 45% are in favor of the extension of the court against 36% against.

The survey was carried out after the leaked disclosure on Monday a draft opinion by Judge Samuel Alito overturning Roe vs. Wade, the 1973 decision that guaranteed the right to abortion nationwide.

On the downside, imposing a time limit on judges can be legally more difficult than expanding the court. The constitutionality of subjecting Supreme Court judges to fixed terms through legislation rather than through a constitutional amendment is questionable, and the process of amendment is inherently more complicated than congressional action. Changing the number of judges, on the other hand, falls unequivocally within the authority of Congress.

Before we delve into how to fix the Supreme Court, let’s look at how it broke down.

It has become clear in recent years that the court has moved well to the right of American political sentiment.

Legal experts Nancy Gertler and Lawrence Tribe, who were members of a commission set up by President Biden to consider options, wrote last year that “the undemocratic and anti-egalitarian direction of this court’s decisions on issues such as voting rights, gerrymandering and the corrupting effects of dark money” made it imperative to reshape the court. (They favored the enlargement of the court “as soon as possible.”)

There is clearly a large gap between what appears to be a court majority restricting abortion rights and public opinion, which overwhelmingly favors access to abortion in some or all circumstances. Only 20% of Americans think abortion should be banned entirely.

The reasons for the divergence between public opinion and legal actions are not difficult to find. One is the growing politicization of the nomination process, in which a judge is appointed by the president and confirmed by the Senate.

As pointed out by Erwin Chemerinsky, a constitutional scholar and dean of UC Berkeley’s law school, from 1960 to 2021 Republicans held the White House for 32 years and Democrats for 29, almost a uniform split. But the Republicans nominated 15 judges and the Democrats only nine.

That count includes conservatives Neil Gorsuch and Amy Coney Barrett, who were the beneficiaries of the Senate GOP’s dishonest ploy to disregard Barack Obama’s appointment of Merrick Garland to succeed the late Ruth Bader Ginsburg, and then to hasten the Barrett’s appointment in the waning days of the Trump presidency; and Biden’s successful appointment of Ketanji Brown Jackson.

Life imprisonment for the Supreme Court has led to this unequal distribution of offices. To some extent this is the luck of the draw.

After the 12-year tenure of Franklin Roosevelt, who appointed eight judges, Democratic presidents have been constantly belittled – Bill Clinton and Obama got only two appointments each during their eight years in the White House and Jimmy Carter none, while George HW Bush received two in his single term and Trump three in his single term. No Democratic president has been able to appoint a judge in the 26 years between the appointment of Lyndon B. Johnson of Thurgood Marshall in 1967 and that of Clinton of Ginsburg in 1993.

The prospect of indefinite service in court has encouraged the judges themselves to try and play their retirements. They typically tried to hold out until they could be certain that a like-minded president would appoint their successor (not that this invariably worked). The result was the continuous service of judges who were clearly mentally or physically handicapped.

This has raised concerns about what law scholar David J. Garrow has labeled “Mental decrepitude” on the pitch. The best-known example for Supreme Court fans is probably that of William O. Douglas, whose 1974 stroke left him so debilitated that his bench colleagues have secretly agreed to suspend all cases Douglas allegedly voiced. casting vote to break a 4-4 tie

Douglas retired in 1975 and died in 1980 at the age of 81. (In a personal capacity, Douglas gave the keynote address at the beginning of my college the year before his stroke, and it was already inconsistent.)

The dangers of the Supreme Court’s open-ended terms are illustrated by the case of Ginsburg, a liberal icon who resisted repeated cancer attacks until his death in 2020 at the age of 81, handing over an open seat to Trump, who filled it with the bow – Conservative Barrett.

“Some of us are really angry,” Levinson wrote, that Ginsburg “chose to roll the dice with the country’s future for no good reason other than his own vanity.”

This brings us back to the question of a deadline for Supreme Court judges. The most common version of this proposal has a duration limit of 18 years, combined with a permanent setting of the court size at nine. The goal would be to provide a bench opening every two years, or two in every presidential term.

Fixed terms for judges would offer at least three virtues. It would help make the Supreme Court more reflective than contemporary political judges between the ages of 50 and 60 would certainly be more in tune with the ebb and flow of social movements than those in the 80s.

It would reduce the political stakes for any nomination, because the prospect of using a nomination to influence the court’s partisan slant towards an unlimited future would vanish.

It would also reduce the likelihood of political extremism taking over the court. At the Levinson roundtable, Lori A. Ringhand of the University of Georgia estimated that the 18-year rule was in effect starting with Bill Clinton’s 1993 mandate, the court would consist of “four strongly liberal judges, three strongly conservatives, a moderately conservative justice judge and a moderately liberal justice ”rather than today’s conservative 6-3 majority.

“Such a composed court could very well find common ground on many issues,” surmised Ringhand. “More fundamentally, it would almost certainly better represent the constitutional preferences of the American people.”

To those who might argue that this system would eliminate extremely liberal and conservative tendencies, one can simply answer: If only. For most of American history, and especially recent history, the court has been a bulwark of conservatism.

The Warren Court liberalism of the 1950s and 1960s was an aberration, its beacon image of progressivism stemming from two main factors: the presence among its members of the longtime liberal lions Hugo Black, William J. Brennan and Douglas, as well as his historic 1954 anti-segregation ruling in Brown v Board of Education.

The remaining question is whether a Supreme Court mandate limit is constitutional. The best that can be said is that expert opinion is divided. The governing language in the constitution is the “behavioral clause”, which specifies that federal judges at all levels “they will keep their offices during good behavior”.

Some experts say this is the only condition placed on the length of judges, meaning the change would require a constitutional amendment – proposed by a two-thirds vote of both houses and ratified by three-quarters of the states – obviously a politically tense and time – consuming process.

But there are those who say that the drafters of the Constitution drew the clause only to ensure that judges would be immune to pressure from the executive and legislative branches, not that any other conditions could be placed on their terms of service.

Some also argue that although the clause mandates lifetime service, that requirement can be met by limiting judges to 18 years on the Supreme Court bench and subsequently transferring them to appellate or district courts and guaranteeing a lifetime salary.

Nobody ever said restructuring the Supreme Court would be easy. FDR learned this from the failure of its court packing program, which aimed to produce and consolidate a liberal bank, but which nearly brought the entire New Deal to a halt.

But with this tribunal now ready for openly partisan purposes to eliminate a legal principle that has protected women’s reproductive rights for more than half a century, the effort is needed and urgent.

No change could be made without a delay of at least several years. But with the abortion ruling now dominating political debate in America, the time to start is now.

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