Justice Sotomayor on Supreme Court Term Limits

A bit of cold water on a popular Court "reform" from a justice on the left-wing of the Court

Rick Pildes at Election Law Blog calls attention to a post by Fix the Court that includes audio and some excerpts from an interview Justice Sotomayor did at the University of Zurich last year. Fix the Court -- a leading advocate of radical Court "reform" -- seems to want to spin Sotomayor's comments as good news, but Pildes points out that Sotomayor seems clearly skeptical of how judicial term limits might be implemented.

In particular, she seems to think that term limits could not be applied to the current justices, which she correctly points out would mean that the reformers would not actually get what they most care about which is altering the current composition of the Court.

Her remarks include this provocative claim:

In the American system, the problem with a term limit is how will they institute it, because I am promised my job for life, and that can't be taken away constitutionally — I don't believe even with a constitutional amendment — because you cannot have a retroactive law changing something that you've earned.

So that means that a current court at the moment these term limits exist, those justices will be there for as long as they want, so you might not get the value of term limits in the United States because of that inherent difficulty.

Perhaps she has been hanging around judges from other countries so much that she has developed some sympathy with the theory of "unconstitutional constitutional amendments?" Not sure how many of the current justices would agree with her analysis that judges have a property interest in their seat that would supersede even a constitutional amendment, but I suspect a statutory effort to limit the terms of the justices would get a chilly reception at the Court.

Oh well, there's always Court-packing, which I'm sure will become an exciting topic of conversation again as soon as the Democrats reclaim Congress and the White House. Even if it has gone into dormancy for the moment.

You can find the Presidential Commission's discussion of judicial term limits in its report here.

Comments

[Commenter_XY]

To me, judicial term limits are a solution desperately looking for a problem to solve. What do we gain with term limits (I don't see an enforced higher turnover rate as a net plus, it is just more churn). How does it help in the quality of the decisions?

Agree with Justice Sotomayor 100% about the implementation challenges.

[Lee Moore]

I'm not sure I agree.

1. Term limits would contribute something to the goal of getting rid of a GOP majority on the court. Under the current system, Justices can time their retirement to get a like minded replacement, subject the unexpected arrival of the Grim Reaper. Absent him, you can wait an extra five or ten years if you have to. Whereas a time limit constrains your ability to do that to some extent. And although the Reaper has come for two Justices recently, at inconvenient times for preserving the status quo ante, it's not a very common occurrence. No doubt someone could run a Monte Carlo simulation on this, and if they did I'd be confident that we'd get a modelled lefty majority on SCOTUS quicker with term limits (even grandfathering the incumbents) than without.

2. Term limits would reduce the number of geriatrics past their peak on the court. And at the same time would reduce the incentive to elevate callow youths who haven't proven their wisdom and common sense, simply because their life expectancy is longer.

3. All power corrupts. The longer you hold it, the greater the odds on you succumbing to the temptation.

[bernard11]

These are good points.

Strategic retirements, or retirements negotiated with the President, are a terrible practice. Justices should not choose their successors.

[Supremacy Claus]

1) Alzheimer described his disorder in the 1910's. The life term was a mistake in the constitution in retrospect. The others were not ending slavery, and the 20 year patent term. That was a duration based on technological progress in the time of Elizabeth I. We also lose 0.5 to 1 IQ point a year after age 16. So the guy with average intelligence at 50 would qualify for special ed in high school.

2) Why does it take 100 years to get what people know is right? The wrong headed people must all pass away. For example, it was consensus that slavery was wrong in the 18th Century, Montesquieu — The Spirit of the Laws (1748), and Adam Smith — The Wealth of Nations (1776). Yet it took a 100 years, a war and the death of Taney, Chief Justice, to get rid of it.

An 18 year term would insulate the Justices from elections. However it would reduce the time of implementing consensus. correct policies.

[TwelveInchPianist]

"...can't be taken away constitutionally — I don't believe even with a constitutional amendment — because you cannot have a retroactive law changing something that you've earned."

Huh? On what planet?

I mean, you would need a constitutional amendment to remove current justices from their positions, but in general, yes, you can have a retroactive law "changing something that you've earned."

[Armchair]

Planet entitlement.

[Lee Moore]

I think it's a rather neat illustration of Conquest's first law -

"Everyone is conservative about what he knows best."

Even barkingly left wing judges who are happy to be radical about pretty much everything, are hidebound "Tories" when it comes to their own offices, and the traditional honors and perquisites that come with them.

[TwelveInchPianist]

She seems to be overlooking impeachment as well.

[Poxigah146]

That statement from her was retarded. A constitutional amendment can literally do anything. You could have an amendment that says "No one with the name Sonia Sotomayor can serve on the Supreme Court," and by definition, it would be legal.

[Longtobefree]

Not if a district judge issues an injunction against the constitution.

[Kazinski]

You could tell Sotomayor's proprietary interest in her seat when she decided not to retire when Biden could replace her.

Maybe it was because she was worried Biden would pick Kamala for the seat to get her out of the way, and in that case I respect her choice.

[Riva]

If life tenure for federal judges was intended to further an objective, apolitical judiciary, this has obviously failed spectacularly as evidenced by current events. The misbehavior of the federal judiciary is a cry for help for reform.

[JonFrum]

Ah, the Wise Latina!

I'd like to hear her educate us as to how she 'earned' her position. And of course, the idea that a consititutional amendment could be uncomstitutional is bizarre. A constitutional amendment becomes part of the constitution when it is ratified. No part of the constitution can be unconstitutional - by definition.

In any case, I'd prefer age limits. How long isn't the problem; at what age is. Eighty years old is generous. As it would be for president.

[Kazinski]

I would think any constitutional case about an amendment for term limits would be decided by the DC court of appeals, or another circuit court and then cert would be denied because every justice would recuse themselves.

[Area Man]

Sotomayor has no problem with functionally amending the Constitution through judicial fiat, but she thinks actual amendments can be unconstitutional—at least if it compromises her ability to keep de facto amending the Constitution. Sheer fucking hubris. I don’t want to hear anymore about threats to democracy from her lot.

[wvattorney13]

Agreed. At bottom of all of our debates in these threads about the powers of the executive, the powers of Congress, judicial review, etc. the underlying assumption was that at rock bottom, We the People, could override anything by passing a constitutional amendment.

Sotomayor is saying that we don't have that power; that someone, perhaps her, can override such a determination by the people. That is borderline impeachable.

[Frank Drackman]

Surpreme Judges are already "Term Limited", they get one Term.

[TwelveInchPianist]

"the theory of "unconstitutional constitutional amendments?"

I mean, an amendment depriving Rhode Island of its Senators would be unconstitutional, but there's nothing preventing an amendment changing the lifetime tenure of court judges.

[wvattorney13]

Couldn't you do it in two steps? First, pass an amendment amending the portion of the constitution that says that you cannot pass an amendment denying a state equal suffrage in the Senate. Second, pass an amendment denying RI its senators.

That would work, no?

[Kleppe]

Clearly insane and indefensible understanding of how the Constitution works. Nice job confirming her to the bench for life!

[pts]

If she wants a contract theory of constitutional interpretation, give her the appropriate contract remedy. Pay her for the rest of her life, but she can't sit on the court because the constitution, as amended, prohibits it.

[Bored Lawyer]

"I don't believe even with a constitutional amendment "

And with that, she confirms herself as a judicial tyrant.

[Randal]

The question really is, how do we incentivise executives to nominate good jurists rather than just outcome-oriented choices like all of Trump's Dobbs nominees?

I like the West Wing solution that justices should be nominated in pairs.

[Malika the Maiz]

If a constitutional amendment was ratified in the immediate future stating that no person shall occupy the office of the President who was 80 or older would that mean Trump would cease to be President at 12 am June 14th of next year? And who could sue to have it enforced?

[Bored Lawyer]

(1) Yes. Assuming that Congress who passes the amendment was too stupid to not make it apply only prospectively. (See the 22d Amendment, which had such a provision.)

(2) Anyone who would be affected by his holding that office. The First Executive Order that affects someone would be challenged as not ordered by the president.