Supreme Court justices are not answerable to the people of the United States. Nominated by partisan executives and confirmed by partisan legislators, justices join a largely unaccountable third branch of the federal government that has in the past seized opportunities to overturn popular legislation enacted to protect voting rights and women’s rights, LGBTQ+ rights, and labor rights, and that could in short order undermine the protections outlined in the Affordable Care Act. For decades after the presidents and senators who empower them have left the political stage, justices determine the direction of the country.
That is the antidemocratic reality of the United States Supreme Court.
Members of the Judiciary Branch exercise outsize authority not because of their wisdom or decency but because of the ostentation of life tenure. Based on the pretense that a justice who can serve for so long as he or she chooses will somehow be free of partisan and ideological pressures, this false construct has saddled the United States with rogue jurists who advance ancient agendas decades after their presidential benefactors have left the White House.
This reality makes the Senate Judiciary Committee’s hearing on President Trump’s nomination of Judge Amy Coney Barrett to serve on the high court particularly unsettling. While much of the committee’s discussion this week has focused on immediate concerns—such as the signals Barrett has sent about overturning the Affordable Care Act—the equally concerning issue is that Barrett, at age 48 and by all accounts in fine health, could easily be sitting on the Supreme Court Bench in 2060. Indeed, if she serves to the age (90) at which Justice Oliver Wendell Holmes Jr. retired from the court in 1932, Barrett could still be determining the direction of this nation after the next 10 presidential elections.
Decades ago, when he served as an assistant to White House Counsel Fred Fielding during President Ronald Reagan’s first term, Chief Justice John Roberts reflected on the challenge of having jurists defining the national experience a half-century after their appointments. “Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence,” wrote Roberts. “It would also provide a more regular and greater degree of turnover among the judges.”
Concerns about life tenure are nothing new. A century ago, the platform of the Progressive Party that nominated Wisconsin Senator Robert M. La Follette for the presidency proposed amending the Constitution so that federal judges would serve fixed 10-year terms, as part of a broad agenda for judicial reform. La Follette objected that “a judicial oligarchy”—“placed in positions for life not by the votes of the people but by presidential appointment”—was overturning child labor laws and other progressive reforms. He warned in 1922:
Today, the actual ruler of the American people is the Supreme Court of the United States. The law is what they say it is, and not what the people, through Congress, enacts. Aye, even the Constitution of the United States is not what its plain terms declare but what these nine men construe it to be. In fact, five of these nine men are actually the supreme rulers, for by a bare majority the court has repeatedly overridden the will of the people as declared by their representatives in Congress and has construed the Constitution to mean whatever suited their peculiar economic and political views.
The court reforms proposed by La Follette, President Theodore Roosevelt, President Franklin Roosevelt, and others in the last century were thwarted.
Now, however, Representative Ro Khanna believes the time is right to establish term limits for Supreme Court justices. The California Democrat has proposed the Supreme Court Term Limits Act, which would:
- Establish an 18-year term limit on any Supreme Court justices approved after the measure’s passage. (Current justices would be exempt from the term limits.)
- Create a regular appointment process to allow every president to nominate a new justice to the Supreme Court during each odd year, guaranteeing each president the opportunity to nominate two justices per four-year term.
- Permit justices who have served their 18-year terms to continue their service on lower courts.
“We can’t face a national crisis every time a vacancy occurs on the Supreme Court,” says Khanna. “No justice should feel the weight of an entire country on their shoulders. No president should be able to shift the ideology of our highest judicial body by mere chance. Most importantly, our country’s top constitutional questions shouldn’t be decided by a panel of jurists who are biding their time until a president of their choice is elected. It’s time to standardize and democratize the Supreme Court.”
What Khanna suggests is permissible under the Constitution. The national nonpartisan reform group Fix the Court notes that “the Constitution does not expressly grant ‘life tenure’ to Supreme Court justices. Rather, this idea has been derived from the language that judges and justices ‘shall hold their offices during good behaviour.’” Yale law professor Bruce Ackerman shares this view, arguing that the establishment of term limits is “within Congress’s power to implement.”
In other words, this is a reform that Congress can and should make at a point when the confirmation process has been turned into a circus warped by politics and ideological desperation.
Khanna’s office explains that his legislation “will eliminate the arbitrary nature of Supreme Court vacancies by creating a regular, fair process that doesn’t reshape the Court for decades at a time.”
Fix the Court executive director Gabe Roth agrees. “For the first time in U.S. history, statutory language has been introduced to accomplish what court-watchers have been saying for ages: on Supreme Court appointments, we must do better,” Roth says of Khanna’s proposal. “A standard appointment process, where future justices serve for a reasonable amount of time, is that better way—and one that liberals and conservatives already agree on. 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 in the rule of law.”