Critics contend that removing a justice from the Court’s regular docket would effectively limit a constitutionally protected office. Serious legal scholars disagree, which is reason enough to prefer a constitutional amendment over a clever statute that the Court might eventually have to judge.⁴
An 18-year term may still be worthwhile. It would make appointments more regular and service less extreme. Its supporters should be honest about what it would accomplish: It would reorganize the politics surrounding the Court rather than remove them.
That is where I come out differently on the two institutions. Congressional term limits would take a decision away from voters, weaken an already diminished legislature and hand more influence to lobbyists, agencies and presidents. Supreme Court terms deserve a serious constitutional debate because lifetime service has grown so long and appointments remain so random.
Term limits remain popular because they offer a visible villain and an easy ending. The old politician packs a box. The justice takes off the robe. We congratulate ourselves for changing Washington.
But Washington doesn’t pack.
The donors stay. The lobbyists stay. The agencies stay. The organizations stay.
Before throwing the bums out, we should find out who gets their keys.
Bibliography
1. • National Conference of State Legislatures. “Legislative Term Limits: An Overview.” Overview of state legislative term limits, including their adoption, repeal and revision. (NCSL)
2. • National Conference of State Legislatures. Coping with Term Limits: A Practical Guide. Examination of how term limits affect legislative knowledge, staffing, leadership, oversight and relations with the executive branch. (documents.ncsl.org)
3. • Brennan Center for Justice. “Supreme Court Term Limits.” Proposal for staggered 18-year periods of active service followed by senior judicial status. (Brennan Center for Justice)
4. • Constitution Annotated, Library of Congress. “Good Behavior Clause Doctrine”; National Constitution Center, “Can Congress Enact Supreme Court Term Limits Without a Constitutional Amendment?” Discussion of Article III tenure and the constitutional dispute over imposing fixed periods of active Supreme Court service. (Congress.gov)
5. • Casey Burgat. “Five Reasons to Oppose Congressional Term Limits.” Brookings Institution, January 18, 2018. Analysis of the likely effects on expertise, lobbyist influence, voter choice and congressional power. (Brookings)