The Center for American Progress is the latest progressive group to back term limits for justices to curb what it describes as the Supreme Court’s “outsized power.”
“The idea of term limits for the Supreme Court is gaining momentum and continues to enjoy support by a variety of progressive—as well as conservative—legal experts,” Maggie Jo Buchanan said. Buchanan authored CAP’s report, released Monday, urging Congress to act.
The report comes as the Democratic Party plans language in its platform calling for “structural court reforms to increase transparency and accountability” within the federal judiciary.
Though the Democrats didn’t announce specific language, the plan is a victory for progressives since presidential candidate Joe Biden has previously been cool to such suggestions.
With regard to term limits, numerous proposals have been advanced. Eighteen-year, staggered terms seems to be the one gaining the most traction.
Despite the change to the party platform, Biden has resisted calls to end justices’ life tenure. But that could change if elected in November, said Mike Davis, of the Article III Project. A3P was established to defend “judges from left-wing attacks,” according to its website.
Indeed, CAP has deep ties to the Obama administration, under which Biden served as vice president. John Podesta, who founded the group in 2003, went on to serve as counselor to the president under Barack Obama.
This is just part of the assault on judicial independence from the left, which includes not only term limits, but also court packing plans and calls to impeach Justice Brett Kavanaugh, Davis said.
He agrees that the Supreme Court has become too powerful. But term limits could actually make it worse, he said.
“The whole point of life tenure is to insulate judges so that they don’t have to worry about their next job while making decisions,” Davis said.
Buchanan said that the risk of corruption already exists on the court. “There is, of course, nothing preventing a corrupt justice from doing so now in the hopes of gaining greater fame or wealth.”
Increasing Stakes
CAP, which hadn’t previously backed term limits for the court, said that the justices’ "ever-longer lifetime tenures” increased the stakes of each nomination.
“As a result, the confirmation process for the highest court has become politically divisive, with extremely narrow votes and theatrics from the nominees themselves,” Buchanan wrote.
She pointed to Senate Majority Leader Mitch McConnell’s (R-Ky.) refusal to hold confirmation hearings for Obama nominee Merrick Garland. McConnell held the seat open for months so that President Donald Trump could fill it.
Constitutional Amendment?
Davis says the change would require a constitutional amendment since life tenure is specifically laid out in the Constitution. So this isn’t something that Congress can do on its own.
Buchanan said justices termed out of their seats could take “senior status” and hear cases in the lower federal courts, alleviating the need for a constitutional amendment.
Justice David Souter, for example, has participated in a number of cases on the Boston-based U.S. Court of Appeals for the First Circuit since retiring in in 2009.
As “long as term-limited judges are allowed to take on senior status or otherwise serve the judiciary in some capacity while continuing to be fully compensated, there is every reason to think that term limits could be done by statute,” Buchanan said.
The Center for American Progress has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.
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