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Conservative Support for Ending Life Tenure at the Supreme Court September 25, 2020

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Conservative Support for Ending Life Tenure at the Supreme Court September 25, 2020 Conservative Support for Ending Life Tenure at the Supreme Court September 25, 2020 Supreme Court Justices Antonin Scalia, Associate Justice “You always wonder whether you’re losing your grip and whether your current opinions are not as good as your old ones.” [New York Magazine, 10/04/13] John Roberts, Chief Justice “Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges.” [New York Times, 07/30/05] Sandra Day O’Connor, Associate Justice “Because it is an unfortunate fact of life that physical and mental capacity sometimes diminish with age, the people may wish to replace some older judges in order to satisfy the legitimate, indeed compelling, public interest in maintaining a judiciary fully capable of performing judges’ demanding tasks.” [Gregory v. Ashcroft, 501 U.S. 452 (1991)] Public Officials Josh Hawley, Senator (R-MO) “What if justices were not appointed for life? Or, more precisely, what if they did not serve on the Supreme Court for life? […] If they know they will not remain on the Court for an extended period of time, and that the rules they craft will shortly be applied by someone else, they may be far less likely to charge so eagerly into constitutional politics. Article III demands that judges be appointed for life, but it does not necessarily require that Supreme Court justices serve for life — provided they remain judges when not on the Court. […] The rotation of the judges on and off the Court could easily be staggered to ensure some continuity from year to year. Justices would thus acquire incentives for caution and moderation rather than judicial aggrandizement.” [National Affairs, Fall 2012] Rick Perry, Former Governor and Energy Secretary (R-TX) “We should take steps to restrict the unlimited power of [...] nine oligarchs in robes [...] to rule over us with no accountability.” [Salt Lake Tribune, 08/31/11] Ted Cruz, Senator (R-TX) “Sadly, the court’s hubris and thirst for power have reached unprecedented levels. That calls for meaningful action.” [National Review, 06/26/15] Ben Carson, Secretary of Housing and Urban Development “Remember, when [life tenure] was put in place, the average age of death was 47. So it really didn’t matter that much. Now it matters a lot.” [Huffington Post, 03/06/15] Marco Rubio, Senator (R-FL) “I am a supporter […of] term limits on members of Congress and the Supreme Court.” [Florida Politics, 01/04/16] Mike Heavican, Nebraska Supreme Court Chief Justice (R) “I think it is an unfortunate part of the way that federal judges are appointed and the fact that they have lifetime tenure, so there is […] almost no accountability in the federal system. [...] Nebraska uses a different system, and most states do use different systems. In Nebraska, there’s a lot more accountability to the judicial system.” [Nebraska Public TV, 04/18/19] Mike Huckabee, Former Governor (R-AR) “We need term limits for the judicial branch because nobody ought to wear a black robe for the rest of his or her life and believe that he or she is unaccountable for the decisions that are being made.” [C-SPAN, 01/24/15] Rand Paul, Senator (R-KY) “Maybe we should term limit out-of-control federal judges.” [Huffington Post, 03/06/15] Law Professors, Think-Tank Experts and Columnists Brian Fitzpatrick, Professor of Law, Vanderbilt Law School ““The leading proposal, which I support, is to give every justice one 18-year term. The terms would be staggered so every two years, another term would end. Every president would get two nominations every four-year term. I think it would de- escalate the acrimony.” [C-SPAN, 09/04/20] Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute “But even if term limits wouldn’t change the court’s decision-making, they might be worth trying anyway because at least there would be less randomness.” [SCOTUSblog, 09/15/20] Ilya Somin, Professor of Law, George Mason University “While there are different variations of the proposal, in most versions Supreme Court justices would be limited to non- renewable 18-year terms, as opposed to the life tenure they enjoy now. I am happy to support the idea, as well.” [Reason, 09/23/20] Steven Calabresi, Co-Founder, Federalist Society; Northwestern Pritzker Law Professor [D]efenders of life tenure have long been able to say, “If it ain’t broke, don’t fix it,” [but] we believe […] life tenure for justices is deeply flawed. The effects are subtle and not readily visible to the American public, but the dangers are real and the threat is severe. Life tenure deserves serious reconsideration and, as we argue, it should be abolished. Inertia ought no longer to justify the continuation of life tenure. In place of life tenure, we join several commentators before us in advocating a system of staggered, nonrenewable term limits of 18 years, after which Justices would be able, if they wanted to, to sit on the lower federal courts. […] We believe moving to a system of 18-year staggered terms for Supreme Court justices is fundamentally a conservative, Burkean idea that would restore the norms in this country that prevailed between 1789 and 1970 as to the tenure of Supreme Court justices [i.e., during that time, justices served an average of 15 years on the Court; since 1970, they’ve served 28 years on average]. The United States Supreme Court ought not to become a gerontocracy like the leadership cadre of the Chinese Communist Party. It is high time that we imposed a reasonable system of term limits on the justices of the U.S. Supreme Court. [Harvard Journal of Law & Public Policy, 2006] Ross Douthat, Columnist, New York Times “The least accountable branch of government, the Supreme Court, has fallen into the hands of an aggressively counter- majoritarian faction. […] Term limits for Supreme Court justices are one obvious example of a neutral reform that might weaken juristocracy.” [New York Times, 07/14/18] John Fund, Political Affairs Reporter and Columnist, National Review “It’s time to end the unseemly position that the anachronism of life tenure for Supreme Court justices has put the country in. It’s a good thing that modern medicine is extending the lives of everyone, including Supreme Court justices. But the time has come to remove the incentives that make justices serve until they drop dead or are gaga. It’s time to put term limits on the Supreme Court.” [National Review, 11/24/19] Tiana Lowe, Columnist, Washington Examiner, and Fox News Contributor “There is something clearly broken in a political culture where voters are told that abortion policy or gun rights are contingent on a single person's health. Congress is supposed to write the rules protecting freedoms and life, with SCOTUS merely interpreting the law and the Constitution as written. Term limits wouldn't fix decades of court politicization and incivility in campaigning, but it would ameliorate those problems somewhat.” [Washington Examiner, 11/25/19] Mark Levin, Syndicated Radio Host “I am going to reintroduce this argument: term limits for justices. If justices want to be political, then they shouldn’t serve for life.” [Real Clear Politics, 07/02/12] David Davenport, Research Fellow, Hoover Institution “There are not sufficient checks on the power of the Supreme Court so term limits, or even age limits, make more sense.” [Washington Examiner, 10/03/18] Doug Bandow, Senior Fellow, Cato Institute “The Supreme Court has become as consequential as the presidency in making public policy. Indeed, contrary to their originally envisioned role, judges have become as likely as politicians to push to expand state power and limit individual liberty. It is necessary to find a way to impose accountability while preserving independence. Appointing judges to fixed terms would simultaneously achieve both objectives.” [Cato Institute, 08/03/15] Michael Graham, Columnist, Boston Herald “The theory is that when you have people appointed by, say, President Ford or H.W. Bush, there have been numerous election cycles since then and the philosophy of the people, the will of people, may have been different 30 or 40 years ago; in fact, it probably was. And so the court should reflect, at some level, the thinking of the people.” [CBS News, 08/05/18] Rob Natelson, Chair, Constitutional Studies Center, Independence Institute “[A] single term [for Supreme Court justices] would restore the balance of legislative, executive, and judicial powers to one more consistent with the constitutional design.” [Independence Institute, 02/11/19] Orin Kerr, Professor of Law, UC Berkeley School of Law “If we all agree that the ideological orientation of the Supreme Court matters — which, for better or worse, undeniably has been in case in our collective memory — then I can’t see why that orientation should depend on how long a handful of people in their 70s and 80s can continue to serve. It would make much more sense to tie that orientation to the elected branches in some predictable and democratically accountable way. That’s why I agree with those who favor term limits for Supreme Court Justices.” [Washington Post, 02/16/16] .
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