U.S. Senate Democrats have introduced legislation amending the constitution to establish term limits for Supreme Court justices — but with no term limits for Congress in sight.
Sens. Joe Manchin, I-W. Va., and Peter Welch, D-Vt., brought the bill forth this week limiting future Supreme Court appointees to 18-year terms. Manchin, along with Kyrsten Sinema, I-Az., recently angered Democrats’ left-most base in spoiling a Democrat-controlled National Labor Relations Board.
However, the proposed legislation may violate Article III of the Constitution.
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But what would happen if such a measure were taken up?
The appointment of a new justice in the wake of a current justice’s rotation off the court might eventually inaugurate a cycle wherein a new justice was appointed every two years.
In other words, court appointments will be directly indexed to the winning presidential ticket. Advocates have said such a move would lower the temperature of Senate confirmation hearings. Whether that would actually transpire is unclear, but it would surely raise the stakes in presidential campaigns.
In any event, the legislation represents a guarantee of two appointments per term, increasing the stakes in controlling the executive branch, if not a technical increase in executive power.
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Would Supreme Court decisions then see-saw with the Presidency, thus undermining the stability and independence of the court?
Critics have said the legislation — similar bills were introduced in Congress two years ago by Rep. Ro Khanna, D-Calif. — is a solution to a problem that doesn’t exist. The court, they say, in spite of its Republican majority, still returns unanimous decisions. As of earlier this year, for instance, 15 of the court’s 18 decisions this term had been unanimous. At other points in time, critics say, only a fraction of the split decisions under the current court were determined by the court’s Republican majority.
In essence, the institution maintains its own legal and interpretive inertia, effectively an independence of partisan fragmentation, precisely as intended.
While the incentives for the executive branch are laid out, in what way would Supreme Court term limits shift incentives for justices? Will judges rotating off the court seek or receive sinecures after their term, downstream of court decisions under their tenure?
There are currently murky paths for Supreme Court justices to enrich themselves, though the court adopted an ethics code last year after revelations of gifts and travel paid for for justices. The most straightforward path may be through lucrative book deals. Term limits could serve to incentivize decisions that would lead to personal gain after a rotation on the court.
Allowing for a different set of duties and incentives with the court than with Congress, there is already a working counterexample: elected officials without term limits apparently already enrich themselves. Congressional stock trades beating the market and alleged insider trading are pervasive enough that online memes and tropes spawned the creation of investment products tracking the most lucrative congressional stock movers. Nancy Pelosi, D-Calif., tops the list.
Would the imposition of term limits on justices, given a new and different set of incentives, actually backfire?