Miscellaneous Mental Musings of an Emerging Artist
During these past weeks, as the Supreme Court and the parliamentary procedures surrounding its appointments have become an even more hostile and inscrutable battleground, two colleagues of mine tossed out the question of term limits for the Court’s judges, rather than its current mode of lifetime appointments.
I don’t think it’s an exaggeration to say that such an idea in practice would represent revolutionary change in how this branch of government operates and is considered in terms of political strategy. Term limits have been enacted as official policy before in our government’s history. The 22nd Amendment, of course, determined that an individual’s presidency may only last two terms, consecutively or otherwise, after Franklin Roosevelt was elected an unprecedented — and thereafter, disallowed — four times in succession. But this is a relatively easy edict to enforce: After two terms, it simply becomes illegal for a president to hold the office ever again. Every four to eight years, the engine stops for a moment and a piece of it is replaced before it restarts.
SCOTUS, however, is a perpetually running machine, in which its components are installed to outlast several presidents. Justices retire and are replaced by other Justices regardless of the individual clockworks that manage the other two branches. Their tenures are impossible to predict, with some Justices choosing to retire after relatively short or long terms, or dying without warning. As the chasm between our two major political parties has expanded and filled with acid; as the Court’s integrity has been assailed by political interest instead of jurisprudence; every single opportunity to reshape the court has become a bloodsport.
So I’ve decided to run a thought experiment on how we might implement such term limits based on current reality, which I’m laying out in this post and the three that will follow it.
What happens if we enact term limits on Supreme Court Justices?
But this is a question that raises other questions, which is why I’m going to examine three distinct scenarios. For the purposes of all three scenarios, I’m using the suggestion tossed out by one of the aforementioned colleagues that no SCOTUS judge shall sit on the bench for longer than 10 years.
Time served is a factor. Justices who have served more than 10 years at the time term limits are enacted are respectfully compelled to retire immediately. All others will retire during the month that occurs 10 years after they first took office.
Time served is not a factor. All justices begin their 10-year term from the moment the term limits are enacted.
Ten-year term limits are to be imposed solely on Justices appointed after the enactment; those currently seated on the Court remain lifetime appointees.
I’ve instituted a set of arbitrary parameters and predictions on this thought experiment for the sake of order and ease of discussion without having to follow every potential twist of fate that would occur in a typical process of turning over a seat on the Court. Below are those assumptions, each followed by a brief note describing the possibilities I know I’m ignoring.
Assumption #1: Term limits go into effect as of January 2019, around the time the next Congress is seated.
Caveat: It’s October 2018 as I write this. No reasonable observer of our nation’s government could expect that such a radical change would happen so quickly. I’m using January 2019 for little other reason than to start watching the ramifications play out in each scenario as soon as possible.
Assumption #2: Republicans retain the presidency until January 2021.
Caveat: I recognize there are a lot of reasons to assume otherwise in the case of this addled megalomaniac currently occupying the Oval Office, but since the focus of this conjecture is to toy with the transitions of the Supreme Court, I’ll act as if the transitions in the White House are going to proceed as normal.
Assumption #3: Republican presidents will appoint judges who maintain a more conservative judicial philosophy throughout their tenure, while Democrats appoint judges who maintain a more liberal judicial philosophy.
Caveat: For this experiment there are no longer any SCOTUS judges who are considered “swing,” as part of what I’m looking at in the experiment is the desire of the executive and their party is to shape the SCOTUS within their own political image. This experiment also disallows for judges such as Earl Warren and David Souter — appointees of Eisenhower and George H.W. Bush, respectively — who over time became known as much more liberal judges than the presidents who appointed them may have expected.
Assumption #4: Brett Kavanaugh will endure his current confirmation battle and be seated on the bench by no later than November 2018. All future nominated Justices are also confirmed, regardless of how contentious the debate may be.
Caveat: At this writing it seems like a very shady shell game is in play to have Kavanaugh confirmed, so I’ll proceed as if the Republicans manage to get him through. If for some reason he fails to be confirmed, we would still expect him to be replaced by another conservative judge who would achieve confirmation, and I’d like to specifically examine the liberal / conservative balance of the Court as it changes in the course of an assumed normal state of affairs — which also means that nothing like what happened to Merrick Garland happens again.
Assumption #5: No future Justices die in office, all Justices retire at the age of 90 if they hit this age before their term limit expires, and all new appointees are 55 years old.
Caveat: These are the least likely assumptions I’m forcing myself to make here, even allowing for advances in modern medicine to which SCOTUS judges could be expected to have access. I picked 55 as an arbitrary “youthful” number for a SCOTUS nomination, although it’s worth noting that the primary reason SCOTUS judges might be nominated to the bench at this age is that the president had assumed a longer, lifetime appointment. In the presence of term limits, it would not seem as unusual to nominate an older man or woman to serve only ten years on the bench. The only real reason to even institute this younger age for the experiment is to note that under term limits, retirement age will stop being a concern of politics at all.
Assumption #6: Perpetual continuity, in which a new Justice takes over for their predecessor within the same month as they depart.
Caveat: No, this also never happens this way. There’s perhaps some small argument to be made in the sense that knowing about an upcoming term limit gives a president the option to prepare well in advance of the retirement. But practically speaking, this describes an efficiency one has no reason to expect. I’m using this parameter anyhow while understanding that there is usually a few months’ gap between a seat becoming available and that same seat being filled.
Next: A look at Scenario #1.