The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Friday, Democratic Representatives Ro Khanna (Calif.), Don Beyer (Va.) and Joe Kennedy III (Mass.) introduced a bill that would impose 18-year term limits on Supreme Court justices:
Democrats Ro Khanna (Calif.), Don Beyer (Va.) and Joe Kennedy III (Mass.) unveiled the bill, the Supreme Court Term Limits and Regular Appointments Act, on Friday. If passed, the act would institute regular appointments to the Supreme Court every two years, with new justices serving for nonrenewable 18-year terms. After 18 years, appointees would become "senior justices" able to temporarily rejoin the court in the event of an unexpected vacancy. Although the current eight justices would be exempted, the two-year appointment cycle would take effect immediately, without waiting for them to retire.
For reasons outlined here, I very much support the idea of term limits for SCOTUS justices (see also Steve Calabresi's recent NY Times column defending them). But enacting them by statute is both unconstitutional and likely to set a dangerous precedent. Legal scholar Michael Ramsey has an excellent discussion of the constitutional problems at the Originalism Blog:
The consensus of legal scholars seems to be that this is unconstitutional if done by statute. I'd like to be a contrarian and say otherwise, but I can't. Indeed, I think this is another example…. where the Constitution's text is clear, if read carefully and without a view to evasion.
Article III, Section 1 provides:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…
I'll assume here that the "good Behavior" standard means the judges hold their offices for life unless impeached and removed under Article II, Section 4…. So, as a starting point, a simple term-of-years for Supreme Court Justices is a constitutional non-starter.
The Khanna et al. proposal apparently tries to get around that restriction by redefining the "office" of Supreme Court Justice as hearing cases for 18 years (I'll call it phase 1) and then serving as a backup "senior Justice" in case of temporary vacancies (phase 2). Rotating from phase 1 to phase 2 wouldn't be a removal from office, it is argued, because the office, by definition, includes both phases of service.
This doesn't work for me. Article III, Section 1 creates "Offices" of "Judges … of the supreme and inferior Courts." Necessarily, holding the "Office" of judge of the supreme Court means acting in a judicial capacity as a member of the supreme Court, not simply having the title and filling in occasionally. This constitutionally defined office can't be redefined by statute to mean the office of acting in a judicial capacity as a member of the supreme Court for a while and then doing something else for the balance of one's tenure. (Otherwise, Congress could define the "Office" of Supreme Court Justice as serving as a Justice for 5 years and then serving as dogcatcher in East Outback, Alaska, for the rest of the time). And Article III, Section 1 goes on to say that the judges shall hold "their Offices"—that is, their offices as members of the Supreme Court—during good behaviour.
Ramsey's critique implicitly highlights a possible negative consequence of assuming Congress has the power to impose term limits by statute: If Congress can impose an 18 year term limit, they can also impose much shorter ones, such as a five year limit or a two year limit. That would make it easy for any party that controls both Congress and the White House to get rid of justices whose rulings they dislike, and replace them with more supportive jurists. And if Congress can impose term limits on all justices, they can also selectively impose them on specific justices it especially wants to get rid of, while leaving the others alone. For example, if a Democratic Congress wished to get rid of Gorsuch, Kavanaugh, or Amy Coney Barrett (assuming she gets confirmed), they could pass a law imposing very short terms on justices appointed in 2017, 2018, and 2020, respectively. Republicans could use similar tactics to target liberal justices who might otherwise become thorns in their side.
One can argue that politicians would be prevented from doing such things by political norms. But, as we have all seen in recent years, norms have a way of fraying and even collapsing in times of intense polarization. If you're a Democrat, would you really trust Republicans to follow norms on this issue, when it becomes inconvenient for them to do so? If you're a Republican, would you trust the Democrats to do the same?
I'm not suggesting that the Khanna proposal is itself motivated by such partisan calculations. To the contrary, I think he and his co-sponsors are acting in good faith. One indication is that they exempt current justices from the term limits, thus making it impossible to use the bill to get rid of current conservative justices liberals dislike. In theory, Amy Coney Barrett might be subject to the term limits if the Khanna bill passes before she gets confirmed. But in practice, such a scenario is highly unlikely.
But once it is generally accepted that Congress has the power to impose term limits on Supreme Court justices by creative redefinition of the office, that power can be also used in less scrupulous ways. And such tactics are likely to be attractive to politicians seeking partisan advantage.
And most politicians are not exactly known for their principled adherence to inconvenient norms. The recent history of Supreme Court nominations and other judicial nomination battles shows that most aren't even willing to stick to norms they themselves embraced just a few years ago. Democrats and Republicans have repeatedly jettisoned their own professed principles on such matters as whether the Senate should consider nominations for vacancies that arise during an election year, whether it is appropriate to filibuster judicial nominees, whether senators can legitimately oppose nominees based on ideological considerations, and so on. The GOP's egregious recent flip flop relative to their 2016 positions is just the latest in a long string of "hardball" tactics deployed in the ongoing political battle over judicial nominations.
By all means, adopt term limits for Supreme Court justices. But let's do it by constitutional amendment. That is both the legally correct path, and the one less likely to create a dangerous slippery slope.