Supreme Court Term Limits: How They’d Work and Why They’d Help
Sunday, July 9th, 2023
This week’s core story is about: Implementing term limits for Supreme Court justices.
KNEAD TO KNOW
The U.S. labor market added 209,000 jobs in June, slightly below economists’ expectations of 225,000 jobs as the unemployment rate dropped to 3.6%. The new data from the Labor Department showed average hourly earnings also ticked up 0.4% for the month, matching May’s pace. Wages are up 4.4% overall from last year.
Meta debuted its Twitter rival Threads this week, hitting a staggering 70 million sign-ups within the first 48 hours of launch. Twitter and its owner Elon Musk already seem worried, sending Meta a letter accusing it of “unlawful misappropriation” of trade secrets in developing the app. “No one on the Threads engineering team is a former Twitter employee,” said Meta communication director Andy Stone in a response letter. “That’s just not a thing.”
The U.S. will send cluster munitions to Ukraine to aid in its defense against Russia’s invasion. The Defense Department announcement is likely to draw criticisms from human rights groups, since the munitions, which drop dozens to hundreds of “bomblets” over a wide area, are banned by some 100 countries.
Treasury Secretary Janet Yellen visited Beijing over the weekend, attempting to revive U.S.-China relations stuck at their lowest point in decades. Yellen touched on a number of topics during the visit, including climate change, political relations, and territorial disputes. Read more.
Supreme Court Term Limits: How They’d Work and Why They’d Help
The Supreme Court has spent the past two terms issuing high-profile decisions Americans don’t want and whining about oversight after legitimate instances of ethics impropriety. Reforms like term limits enjoy wide bipartisan support and experts say they’d help address the Court’s current public image issues, but the justices have a habit of balking at congressional oversight.
So, what does the research say about instituting term limits for Supreme Court justices? And how would a new tenure system help restore faith in the judiciary? Let’s dive in.
If you live in the U.S. and pay even the slightest attention to government and politics, you know the Supreme Court is going through some things. Media folk rush to sensationalize the situation as a “crisis,” but that seems misplaced, or, at the very least, early, since the Court’s decisions still carry weight and the relevant actors still abide by the rulings.
No matter the descriptor, it’s clear something is brewing. It’s hard to say whether that “something” will amount to the congressional oversight and judicial reform we so desperately need, or a limp government report calling for regulations and policies it knows will never be delivered. In any case, it’s clear the public has a problem with the Court.
In my view, the problem stems from a number of things, any one of which standing alone would be a conquerable issue, but standing together seems like too much.
First, people on the left, like myself, have to acknowledge part of the distaste stems from former President Donald Trump getting to seat three Supreme Court justices – one of which rightfully belonged to President Barack Obama – that will shape constitutional interpretation for generations to come. We just don’t like that fact, or Mitch McConnell’s textbook hypocrisy in confirming Justice Amy Coney Barrett in an election year after denying Merrick Garland a seat for the same purported reason, and we should all be willing to admit that, since it’s not very controversial anyways.
Second, the recent investigations by ProPublica detailing legitimate instances of ethics impropriety by Justices Clarence Thomas and Samuel Alito show how disconnected our justices may be from the realities of American life. The justices are public servants, so why are they cavorting with billionaires on fishing trips and private jets without disclosing as much? How long can they keep pretending the appearance of impropriety doesn’t matter?
Third, and much more importantly, the Court’s recent assault on longstanding precedents much of the public view as safeguards for some of society’s most vulnerable members has destroyed the body’s approval ratings and public support. More particularly, the decisions to overturn the constitutional right to abortion (last term), end affirmative action in higher education, reject President Joe Biden’s student debt relief plan, and allow a website designer to discriminate against gay people.
[Bonus Bite: There’s been a big uproar about the 303 Creative website designer plaintiff apparently making up a request for a gay couple’s wedding, and that meant there was no injury and that the Court wrongly decided a case based on fiction. That’s not true. The plaintiff had standing. The 10th Circuit spent around 10 pages describing why, as did Justice Neil Gorsuch in the Supreme Court’s opinion, and Justice Sonia Sotomayor didn’t mention the issue of standing in her dissent. Without getting lost in the weeds, the plaintiff sought what’s known as a “pre-enforcement challenge,” alleging an existing Colorado law violated her speech rights. The apparently fake request is a weird wrinkle that had no bearing on the case.]
If people only had to get over Trump’s appointments, that would eventually happen. If we only had to get over justices’ ethics impropriety, history shows that would also happen. And if we only had to get over the anxiety of losing longstanding precedents, that would probably happen too.
But it’s not any one of those things, it’s all of them.
The Court’s most recent decisions, announced last week, prompted President Biden to describe the chamber as “not normal,” telling MSNBC’s Nicole Wallace, “[T]ake a look at how it's ruled on a number of issues that have been precedent for 50, 60 years sometimes.” Adding, “I find it just so out of sorts with the basic value system of the American people.”
Biden stopped short of describing the body as a “rogue court,” an unofficial label used by media to illustrate how the Court has consistently gone against the desires of a majority of Americans. Biden also believes expanding the number of justices (a.k.a., “court packing”) would be a “mistake,” fearing it could politicize the Court in a way that it may never recover from.
But how about other measures? Court packing isn’t the only way to rein in a body conservatives have spent decades buying, and, in any case, the idea doesn’t have broad support, making it unlikely Democrats will even try.
One idea that does have broad, bipartisan support, however, is implementing term limits.
An AP-NORC survey last year found 67% of Americans support setting term limits for Supreme Court justices instead of continuing with lifetime appointments, including 82% of Democrats, 57% of Republicans, and 51% of independents. Relatedly, the survey also found 64% of respondents supported requiring the justices to retire at a specific age, with 75% of Democrats, 56% of Republicans, and 54% of independents on board.
The idea of term limits has gained so much steam in recent years that Reps. Ro Khanna (D-CA), Don Beyer (D-VA), Barbara Lee (D-CA), and Rashida Tlaib (D-MI) introduced a bill to get it done in 2021 (former Democratic Rep. Joe Kennedy III was one of the original co-sponsors of the bill in 2020). Khanna and Beyer reintroduced the bill last week after the Court rejected Biden’s student debt relief plan, though it remains to be seen whether it gains any traction.
So, since the idea has broad public support and an actual bill to go along with it, I thought it’d be fun to go over what the research says about crafting Supreme Court term limits, and why the changes would help remedy the Court’s current public image issues.
What the research says:
Researchers at various think tanks, institutions, and universities have studied the idea of implementing Supreme Court term limits in recent years, and all seem to center on the same proposal: 18-year, nonrenewable terms with regularized appointments every two years. Following the 18-year active term, justices would move to a senior phase until retirement or death, allowing them to hear cases on lower level federal courts, help with judicial administration, and fill in for Supreme Court justices when there’s a recusal or absence.
Moving justices to a senior phase after an 18-year active phase has precedent, as a similar framework has been in place for lower federal court judges for more than a century and has applied to Supreme Court justices since 1937. Requiring the justices to hear lower court cases likewise has precedent, since “circuit riding” used to be a requirement in the first hundred years after our founding and wasn’t formally ended until the early 20th century. Even today, the traditions live on in former Supreme Court Justice David Souter, who’s heard some 500 cases on the First Circuit since retiring from the high court in 2009.
A major benefit of regularized appointments is they’d result in staggered terms, opening a new vacancy on the Court every two years, thereby ensuring presidents would get to nominate at least two justices during each four-year term. The regularization would end the current unpredictability of vacancies which today only come when a justice voluntarily retires or dies on the bench.
Term limits with regularized appointments would also ensure that no one president has an outsized influence on the Court and generations of constitutional interpretation, like we have today.
Take, for example, the differences in appointments between recent presidents. Trump got to appoint three justices in his lone term, while Obama, George W. Bush, and Bill Clinton each only got two, despite winning the presidency twice. George’s dad, George H.W. Bush, also got two appointments in his one term, while Ronald Reagan got four in his two terms, and Jimmy Carter got none in his four years.
The unpredictability of vacancies isn’t just about which president gets to fill them, they also lead to ridiculously long terms that are out of step with most of our history. Historically, Supreme Court justices have served an average of 16 years on the bench, however, since 1970, the average has jumped to 25 years, and the five most recent justices to leave averaged 27 years.
The longer terms also obviously lead to less turnover, meaning the Court is made up of justices far removed from the actual practice of law (if they ever practiced) and increases the disconnect between the public and the Court due to its nature of being “insulated” from politics and public discourse.
Why it matters:
So, how could term limits help the Court’s image? By increasing the public’s trust.
In a 2022 commentary, David Levi, president of The American Law Institute and the former dean of Duke Law School, asked three U.S. Courts of Appeals judges about why public trust in the judiciary matters, boiling it down to a single sentence: “[T]he rule of law largely depends on the willingness of ordinary people, as well as political actors, to abide by court rulings.”
Second Circuit Judge Raymond Lohier Jr. echoed the sentiment, telling Levi, “One reason that I think we should all worry about a loss of confidence and support in the courts, or even a reported loss in confidence and support, is that — this is almost cliché — but we really have nothing other than public confidence to protect the branch.”
In other words, the whole system is essentially built on faith, and most in the legal field understand how precarious that faith actually is, especially in today’s era of mass communication and social media that captures attention and moves public opinion unlike ever before. With a Court Americans increasingly view as partisan and political, it’s understandable the public’s faith has been shaken since perceived neutrality is why we give the body deference and respect.
Experts also believe term limits would help address the Court’s ethics issues by decreasing the likelihood that any justice starts acting like they’re above the law. Justices are people; powerful, smart people, but people nonetheless. After spending two decades issuing some of the most important and impactful legal decisions in the world, it’s easy to see how they might see little downside in ignoring ethics rules since there’s no true oversight anyways.
The proposed senior phase after 18 active years may also remedy the judiciary’s balking at congressional oversight in the name of judicial independence, since senior justices could handle ethics investigations and rulings, maintaining the separation of powers. It also seems like a no-brainer that accountability through legitimate oversight would increase the public’s faith and trust in the body.
Still not convinced? Don’t take my word for it, or that of the experts who compiled the reports I shared, here’s future Chief Justice John Roberts on the idea in a 1983 memo while working as a White House lawyer in the Reagan administration:
We’ll see if Roberts sticks with his own advice.
Civil Rights Groups Challenged “Legacy Admissions” at Harvard
The NAACP on behalf of three civil rights groups filed a complaint with the U.S. Department of Education challenging so-called “legacy admissions” at Harvard, alleging the policies overwhelmingly benefit white students. In the complaint, the groups allege nearly 70% of Harvard applicants with personal ties to donors or alumni are white and are around six times more likely to be admitted than other applicants.
The challenge comes a week after the Supreme Court found race-conscious admissions programs, a.k.a., “affirmative action,” are unconstitutional, ending the programs nationwide.
Bonus Bite: We wrote about ending affirmative action last week.
The Past Week Might Have Been the Hottest Ever Recorded on Earth
The record for the hottest average global air temperature recorded two meters above the Earth’s surface was broken three times this past week, likely making it the hottest since recordkeeping began in the 1850s.
The average global air temperature reached 17.23 degrees Celsius (63.01 degrees Fahrenheit) on July 6, topping the previous high of 17.18°C (62.92°F) recorded on July 4 and 5. Experts say the findings all but confirm scientists’ warnings that this year will be the hottest on record, thanks to a combination of climate change and a warming El Nino.
The U.S. Is Set to Rejoin UNESCO
Member states of the U.N.’s Educational, Scientific, and Cultural Organization overwhelmingly voted to readmit the U.S. after a two-day meeting at the body’s headquarters in Paris last week, including a plan for the U.S. to repay $619 million in missed funding.
The vote ends a five-year absence initiated by former President Donald Trump, who ordered the withdrawal over accusations of anti-Israel bias by the U.N. body.
Online Hate and Harassment Is Up Among Teens and Adults
A new report by the Anti-Defamation League found 51% of teens aged 13 to 17 reported experiencing some form of online harassment in the past 12 months, up from 36% in 2022. A third of adults (33%) also reported experiencing online harassment, up from 23% last year.
The report found transgender people are the most targeted demographic group, with 76% reporting experiencing online harassment at some point in their life, including 60% who say they’ve experienced “severe” harassment.
Almost Half of the U.S.’s Tap Water Has “Forever Chemicals”
A new study by the U.S. Geological Survey estimates 45% of the nation’s tap water contains one or more types of per- and polyfluoroalkyl substances (PFAS), a.k.a., “forever chemicals,” which have been linked to various adverse health effects. The researchers examined samples taken from 716 sites around the country between 2016 and 2021.
PFAS have been used in common household products since the 1940s and take a long time to break down, making it easy for the chemicals to linger in the environment and leach into water supplies.
Yellowstone Has Way More Magma Than We Thought
A new study led by researchers at the University of Utah found the amount of melted rock beneath Yellowstone’s supervolcano is actually much higher than previous estimates, placing the “melt” inside the upper chamber at around 28% of the total space, up from the 16% to 20% found in prior studies.
Despite the increase, experts say an eruption is still very unlikely, since volcanoes are typically at risk of eruption when at least 50% of the space in their upper chamber fills with melt.
402 years - How long education funding in Wisconsin will increase in each year’s state budget after Democratic Gov. Tony Evers used his line-item veto power to change the phrase “2023-24 school year and the 2024-25 school year” to “2023-2425” in this year’s budget passed by the Republican-controlled legislature.
$108.4 million - The sale price of Gustav Klimt’s “Lady with a Fan” at Sotheby’s in London last month, making it the most expensive artwork ever auctioned in Europe. The masterpiece is the last portrait Klimt completed before his death in 1918.
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Short Video. Why did the megalodon go extinct? (5 min)
Fun Video. How did A24 take over Hollywood? (10 min)
Good Read. One stadium beer vendor’s theories on why ballparks’ beer sales are down. (1,566 words; 8 min)
Neat List. The world’s most liveable cities based on stability, health care, education, and infrastructure, among other factors.
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Written by Ryan Wittler