Cascade (Part IV).
Read Part I, Part II, and Part III.
Scenario 3
Ten-year term limits are to be imposed solely on Justices appointed after the enactment; those currently seated on the Court remain lifetime appointees.
In this scenario, we adopt an understanding that the currently seated Justices were promised a lifetime appointment, and that this agreement should be honored.
So here’s where things get really complicated.
Start with the (unlikely) idea that every current judge remains on the Court until the month they turn 90. Even with the ten-year term limits first enacted in January 2019, the first nominee to be affected by them won’t be seated until Ginsberg retires in 2023, followed by Breyer’s replacement in 2028.
What becomes unusual is that by imposing the ten-year term limit on Ginsberg’s and Breyer’s replacements, both of those replacements retire before or during the same year as the next Justice to turn 90, Clarence Thomas. The SCOTUS then exists for decades — over the next ten presidential terms — as an oddly shifting combination of temporary appointments and entrenched veterans until after Gorsuch, the youngest of the current justices, retires in August 2057.
The first time we see a SCOTUS composed entirely of term-limited Justices is 2058, as shown in the table below that carries us through the end of the 2069 presidential term. What is also clear in this table is that rotation now happens much more frequently, going forward — the largest gap of time between retirements is three years, between April 2060 and March 2063.
With this rough timeline in mind, we can track when a president would expect to be called upon to nominate new justices to the Court as such:
As well as what happens if every one of those presidents serves two full terms:
With the new term-limited SCOTUS in full effect, by the midway point of the century we grant a two-term president the opportunity to completely reconfigure the SCOTUS as they wish, with the 2053 – 2061 terms set as the first real prize: all nine Justices turning over during a single presidency.
In other words: A sitting president and a Senate in the latter half of this century — still operating under all other current procedures — will find themselves consistently called upon to refresh the Court, and mathematically speaking you will end up in future situations where a single president is granted the power to change the balance of the Court simply due to fortunate timing. You don’t get as many dramatic swings as you did in Scenarios 1 and 2, but the moments in which the Court exists in a closer split will last for only a few years at most.
Final Thoughts and Takeaways
For me, the point of this exercise was to take a look at a proposed radical change — adopting term limits on the SCOTUS — and learning whether the impact of that change, laid out in one highly engineered experiment, might present consequences down the line that would be harder to stomach than the status quo of lifetime appointments.
But there’s no solid answer here, because politics tosses sludge into the scrying pool. Current SCOTUS nomination battles are not only about the character and qualifications of the judges themselves, after all, but about the underlying philosophies of the nation’s two parties and how they hope judges will interpret the laws that make up our society. And the current state of the Republican Party, frankly, is not interested in governing a democratic society as much as they are interested in re-creating the machines of feudalism and inflicting them upon the rest of us. We learned how little modern Republicans respect normal processes of governance when they abjectly refused to hold a hearing on Merrick Garland, and we learned how little they respect normal decorum when they boarded Donald Trump’s festering carcass and committed themselves to maintaining its state of rot for as long as they could squeeze a power play out of it.
I’d wish for this thought experiment to have been largely academic, to muse about a nation moving back and forth across one reasonable center as the balance of its highest court changed, but that’s not where we are now. A conservative majority of lifetime appointees set at even 5-4 has become a herald of a terrifying future for a vast swath of Americans because of who American conservatives have allowed themselves to become over the past decade.
So I find myself looking at the notion of instituting immediate SCOTUS term limits and being given pause on each of these scenarios, albeit some more than others. There are other options, more viable and with fewer downsides, such as increasing the number of SCOTUS judges in an attempt to neutralize the poison pill that Mitch McConnell, et al, have forced down the country’s throat.
For tonight, there seems to be a devastating loss on the horizon, made by men whose only mandate was to win at all costs and whose skill at hiding what those costs actually are will give them time to escape after the damage is done. And I have devoted so much of my mind this week to thinking about these scenarios in part because I can no longer fathom the sheer venality of these men, how much they have corrupted and abused, how poorly history will look upon them. I have trouble thinking about it because I will only be fortunate to be around long enough to see that legacy exist, but for now I have to watch and stew and strike my fists against walls while I and my loved ones live through it.
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