Jus­tices should face term lim­its

And a con­sti­tu­tional amend­ment isn’t needed

USA TODAY US Edition - - NEWS - Gabe Roth Gabe Roth is ex­ec­u­tive direc­tor of Fix the Court, a non­par­ti­san or­ga­ni­za­tion that ad­vo­cates for greater trans­parency in the fed­eral ju­di­ciary.

Amer­i­cans wak­ing up this week to yet an­other fight over Supreme Court nom­i­na­tions are ask­ing them­selves, is there a bet­ter way?

The an­swer, of course, is yes. A plan to fix the ap­point­ment process al­ready has the sup­port of the vast ma­jor­ity (77% of Amer­i­cans fa­vor re­stric­tions on the length of SCOTUS ser­vice vs. 23% against) of the Amer­i­can peo­ple: end­ing life ten­ure for fu­ture jus­tices.

What’s more, this would not re­quire amend­ing the Con­sti­tu­tion.

Ar­ti­cle III states that judges and jus­tices “hold their of­fices dur­ing good be­hav­ior,” which his­tor­i­cally has been un­der­stood to mean that not un­til death do they and their robes part. But there’s no par­tic­u­lar rea­son the “of­fice” re­ferred to could not be in­ter­preted as the of­fice of fed­eral judge.

In other words, af­ter a jus­tice serves a rea­son­able amount of time on the high court — not 30 or 35 years, as has be­come the norm — she could con­tinue to serve for as long as she wanted else­where in the ju­di­ciary. Since 1937, when a tweak in fed­eral law smoothed a path for re­tired jus­tices to do ex­actly this, 11 have cho­sen to con­tinue their public ser­vice on lower courts, in­clud­ing San­dra Day O’Con­nor, who left the high court in 2006, and David Souter, who re­tired in 2009.

Re­mem­ber, ju­di­cial life ten­ure is not handed down by de­cree from on high. It ex­ists in the United States be­cause a se­ries of 18th cen­tury Bri­tish monar­chs, on this and the other side of the At­lantic, were ax­ing ju­rists whose de­ci­sions they ob­jected to. That’s it.

Nearly ev­ery coun­try whose Con­sti­tu­tion was writ­ten in the 20th cen­tury — not to men­tion 49 of the 50 U.S. states — re­quires its top ju­rists to step down af­ter a cer­tain num­ber of years or upon reach­ing a cer­tain age. SCOTUS is an outlier.

The next ‘no­to­ri­ous’ jus­tice

Dur­ing the found­ing gen­er­a­tion, jus­tices had few re­spon­si­bil­i­ties from the bench and lim­ited ju­ris­dic­tion, but un­til 1911, they were re­quired to hear cases in far-flung lo­cales across our bur­geon­ing coun­try — an ex­haust­ing and treach­er­ous propo­si­tion be­fore the ad­vent of mod­ern modes of trans­porta­tion. Some mem­bers couldn’t leave the court fast enough.

Serv­ing on the Supreme Court today is akin to be­ing a rock star, maybe even a monarch. You’re wined and dined and flown around the world. An en­tire seg­ment of the pop­u­la­tion hangs on your ev­ery word, and en­tire seg­ments of the pop­u­la­tion are im­pacted by your ev­ery key­stroke. It’s a dif­fer­ent job, and we’re a dif­fer­ent coun­try.

With Repub­li­cans in the Se­nate hav­ing the votes to con­firm Pres­i­dent Don­ald Trump’s nom­i­nee, Democrats might not be able to stop a con­ser­va­tive ju­rist from be­com­ing the next No­to­ri­ous ACB (Amy Coney Bar­rett). But they can join with their con­ser­va­tive col­leagues who have long em­braced the con­cept of term lim­its and en­sure that never again will a superannua­ted bench de­ter­mine the na­tion’s di­rec­tion.

To start, Congress would pass a law whereby a new jus­tice would be added to the court ev­ery other year. That way, each pres­i­den­tial term gets two, and va­can­cies would be­come more pre­dictable. If the goal is a nine-jus­tice court, that means fu­ture jus­tices (9x2) would have terms of 18 years.

Less games­man­ship

“If there were a long term, I don’t know, 18, 20 years, some­thing like that, and it was fixed — I would say that was fine,” to quote Jus­tice Stephen Breyer. To avoid con­sti­tu­tional con­cerns — they signed up for a lim­it­less job — Breyer and his seven cur­rent col­leagues would be ex­empt.

Af­ter their terms, a prospec­tive jus­tice would have the op­tion to serve on a dif­fer­ent fed­eral ap­peals court, and — this is crit­i­cal in light of re­cent events — they’d be able to re­turn to the high court in the case of a sud­den va­cancy. Full strength. Less games­man­ship. No par­ti­san ad­van­tage.

Through­out U.S. his­tory, Congress has used its con­sti­tu­tional power to change the roles and re­spon­si­bil­i­ties of our courts. Law­mak­ers are well within their rights to again change the role of our top ju­rists, con­sis­tent with their un­der­stand­ing of the Con­sti­tu­tion.

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Pres­i­dent Don­ald Trump and first lady Me­la­nia Trump pay re­spects to Jus­tice Ruth Bader Gins­burg’s draped cas­ket Thurs­day at the Supreme Court.

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