Pitfalls of Statutory Term Limits for Supreme Court Justices
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). Rota
Article from Latest – Reason.com