In recent weeks, discussion of Supreme Court Term Limits has become widespread with President Biden's proposals for SCOTUS reforms. Previously, I researched this topic extensively from a largely theoretical and moral point of view for a Lincoln-Douglas debate case. I adapted this work into the format of a blog; please note that this does not necessarily reflect my political opinions, and I will be posting an Affirmative case as well. I find that arguing both sides provides much clarity on the subject, and this sort of discourse doesn't happen enough in our country currently... Enjoy!
Introduction: Understanding the Supreme Court and Term Limits
The Supreme Court, as defined by the American Bar Association, is the highest tribunal in the United States for all cases arising under the Constitution or other federal laws. The nine justices of the Supreme Court serve as the final arbiters of the law, ensuring that the American people receive the promise of equal justice under the law. The court acts as both protector and interpreter of the Constitution.
The debate surrounding term limits for justices of the Supreme Court of the United States has gained significant traction in recent years, particularly focusing on an 18-year term limit proposal. The Term Limits for Supreme Court Justices Act, commonly referred to as the TERM Act, is one of the most popular and recent proposals. This essay will explore the arguments against this proposal, emphasizing the potential consequences of implementing term limits and challenging the notion that such limits would bring justice or fairness to the judicial system.
Practical Matters: The Ineffectiveness of Term Limits
One of the primary arguments against term limits is their potential to increase polarization within the Supreme Court. The concern is that term limits could lead to more frequent appointments by the sitting president, thereby increasing the influence of a single political party over the court. Hemel (2021) highlights this issue by noting that a two-term president could appoint 44% of the court's justices. If two consecutive presidents from the same party were to serve, a significant majority of the court could quickly become ideologically one-sided. This concentration of power could undermine the court's ability to act as a check against executive power, particularly when justices exhibit what Epstein and Posner (2016) describe as the "loyalty effect"—a tendency to be more deferential to the administration of the president who appointed them.
Moreover, the potential for drastic ideological shifts within the court, often referred to as "ideological ping-pong," could erode the principle of stare decisis, which requires courts to treat like cases alike to avoid arbitrary discretion. Chief Justice Roberts emphasized the importance of this doctrine in distinguishing judicial decision-making from the political process. Marcum (2020) argues that term limits could undermine this principle, leading to less predictable and more politically driven legal outcomes. This unpredictability could result in significant shifts in legal interpretations depending on the court's current composition, which would ultimately harm the stability and consistency of the law.
Another concern is that term limits might inadvertently increase the average age of justices on the court. While term limits would reduce the average tenure, they could lead to the appointment of older judges, as there would be less incentive to appoint younger justices who could serve for several decades. Hemel (2021) points out that if the primary concern is the risk of mental decline among justices, then compressing the age distribution on the court through term limits might not achieve the desired effect. Instead, age limits might be a more effective policy tool to address concerns about the cognitive abilities of justices as they age.
A Theoretical Argument: Term Limits Further a False Trust in American Democracy
Inherent Injustice in the Supreme Court
Beyond the practical concerns of term limits, there are deeper philosophical questions about the Supreme Court's ability to deliver justice. The court is tasked with upholding the Constitution, a document that some scholars argue is inherently flawed. Doerfler and Moyn (2022) argue that the Constitution inevitably orients us to the past, leading to disputes over historical interpretations rather than addressing the present and future needs of society. This backward-looking focus can misdirect the court's efforts, preventing it from delivering the equal justice it promises.
Furthermore, the very structure of the Supreme Court may prevent it from effectively protecting rights in a democratic society. Waldron (2006) argues that rights-based judicial review is inappropriate for reasonably democratic societies where members disagree about rights. In such circumstances, legislative procedures that involve the voices and opinions of millions of citizens are more appropriate for resolving disagreements about rights. Waldron contends that the Supreme Court's role in judicial review adds little to the process and instead disenfranchises the public by removing their ability to directly influence decisions about rights. This disenfranchisement undermines the democratic process and suggests that the Supreme Court, as currently structured, cannot fully uphold justice.
The False Sense of Democracy Provided by Term Limits
Proponents of term limits often argue that they would bring greater democracy and accountability to the Supreme Court. However, this argument is flawed, as term limits may create a false sense of democracy without addressing the underlying issues within the political system. The example of a country with rigged elections, where citizens believe they live in a democracy but are actually under a dictatorship, illustrates the danger of such illusions. If citizens are unaware of the injustices within their government, they cannot fight against them. Similarly, term limits may give the appearance of reform and increased accountability, but they do not address the core problems of polarization and the party system that drive the current dysfunction in the Supreme Court.
The rise of the party system, particularly the modern two-party system, has played havoc with the process of appointing Supreme Court justices. The Framers of the Constitution did not anticipate the role that political parties would play in governance, and the current system reflects this oversight. In a world without parties, the nomination and confirmation of justices would presumably be based solely on merit. However, the influence of political parties has distorted this process, leading to nominations and confirmations that are driven by ideological and partisan considerations rather than the qualifications of the candidates. As Marcum (2020) notes, life tenure acts as a check on a rapidly moving legislature, but term limits could weaken this check and further entrench the influence of political parties.
Additionally, the implementation of term limits would not solve the problem of politicization within the Supreme Court. Even if term limits were put in place, it would take decades to fully implement them, and current justices could still serve for many more years. The Senate's refusal to consider Merrick Garland's nomination in 2016 demonstrates the potential for further manipulation of the confirmation process, which could continue even under a term-limited system.
Conclusion
The proposal to impose 18-year term limits on Supreme Court justices is fraught with potential consequences that could undermine the very principles of justice and democracy it seeks to uphold. Term limits could increase polarization within the court, lead to the appointment of older justices, and create a false sense of democracy without addressing the root causes of dysfunction in the political system. Moreover, the inherent flaws in the Constitution and the structure of the Supreme Court raise serious questions about the court's ability to deliver justice. As such, the proposal for term limits should be approached with caution, and alternatives that address the underlying issues within the political system should be considered.
Comments