As the Supreme Court swings further to the right and Joe Biden contemplates structural changes if he wins the presidency, a Bay Area congressman has introduced legislation that would expand the court and set term limits for new justices, without amending the Constitution.
“The Supreme Court was designed to be the final chapter in a distinguished jurist’s career, not a partisan battle to see who can appoint the youngest, most ideological judge to sit on the bench for the next four decades,” Rep. Ro Khanna, D-Santa Clara, said Wednesday.
“Right now, the previous generation is making the laws for our generation,” he said. “It’s anti-democratic. We need term limits.”
And while current justices must keep silent publicly on such issues, Khanna can call on an unlikely ally from decades past — current Chief Justice John Roberts, who wrote a memo on term limits in 1983 when he was an assistant to the White House counsel under President Ronald Reagan.
“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,” Roberts, who has just begun his 16th year on the court, said in his memo. “It would also provide a more regular and greater degree of turnover among the judges.”
The legislation, HR8424, cosponsored by Reps. Don Beyer, D-Va., and Joe Kennedy, D-Mass., won’t get far in the current Congress but is a draft for a year in which Democrats hope for majorities in both houses of Congress as well as the White House. It has been endorsed by Ted Kaufman, the former senator who heads Joe Biden’s proposed presidential transition team.
The Constitution provides life terms for Supreme Court justices and other federal judges but does not specify the size of the Supreme Court, which was last set at nine by Congress in 1869. Democrats’ discussion of expanding the high court — labeled “court-packing” by Republicans — took on a new urgency this week with the rapid Senate confirmation of President Trump’s third appointee, Amy Coney Barrett, establishing a 6-3 conservative majority that could last for a decade or more.
HR8424 would allow each president to nominate a new justice in the first year in office and every other year after that. The nominee, if confirmed by the Senate, would be a federal judge for life but would serve on the Supreme Court for no more than 18 years, and then could transfer to a lower federal court, as former Justices David Souter and Sandra Day O’Connor have done since their retirement.
The effect would be to increase the size of the Supreme Court every other year, at least until current justices retire or die. Khanna and his cosponsors have not said whether they would simply add new members to the court, wait until current justices depart or try other approaches suggested by some advocates, like allowing nine justices to decide constitutional disputes while other legal issues are heard by the larger court.
“Though the bill is not perfect, we believe it to be a critical piece in prescribing how our country’s leaders can work to depoliticize the Supreme Court and its confirmation process,” 30 law professors and scholars, including Kaufman, said in a letter endorsing the measure.
But others, including an advocate of Supreme Court expansion, say Congress lacks the power to require Supreme Court justices — even justices whose jobs were established by the new legislation — to transfer from the high court after a specific period of time.
“I am sympathetic and support term limits. But I think it would be unconstitutional,” said Erwin Chemerinsky, the law school dean at UC Berkeley, who has called for Democrats to add four members to the court. “The core function of being a Supreme Court justice, hearing and deciding cases on the Supreme Court would be taken away. I read Article III (of the Constitution) as saying that justices on the Supreme Court have their positions for life.”
The assessment of the liberal Chemerinsky was shared by the more conservative Michael McConnell, a Stanford law professor and a former federal appeals court judge.
“Justices are not just guaranteed tenure in some office, but in the office to which they were appointed,” McConnell said. He said Khanna should propose a constitutional amendment, “which I think would have substantial bipartisan support.”
But given the current partisan divide over the court, it’s hard to foresee the two-thirds congressional majorities that would be needed to approve a constitutional amendment and send it to the states for ratification. One who believes it wouldn’t be necessary is Bruce Ackerman, a constitutional law professor at Yale University.
“While the Constitution guarantees justices tenure for life, it nowhere states that they must serve their entire term on the Supreme Court,” Ackerman said in a December 2018 Los Angeles Times column advocating both term limits and court expansion.
The legislation would still need 60 votes to overcome a Republican filibuster in the Senate, unless a new Democratic majority repealed the filibuster.
Term limits would undo what for many is a bedrock principle of the Constitution, life tenure that promotes judicial independence by shielding federal jurists from the pressures of periodic elections. Criminal defense lawyers often fare better in federal court than in state courts, where judges who overturn convictions may be voted out of office.
But, as Roberts pointed out in his 1983 memo, the drafters of the Constitution “adopted life tenure when people simply did not live as long as they do now.” Since 1970, the average Supreme Court tenure is 27 years, said the advocacy group Fix the Court, which supports 18-year term limits.
These days, “the party in charge scrambles to find the youngest, often most ideological nominee (who, at the same time, knows to say the right things at a confirmation hearing) in order to control the seat for decades to come,” Fix the Court said.
Justice Stephen Breyer, who was appointed by President Bill Clinton in 1994 and has no stated plans to retire, said at an American Association of Law Schools conference in January 2016 that a term limit of 18 or 20 years, applied to all justices, would be “fine — in fact, it would make my life a lot simpler.”
Biden says that as president he would appoint a bipartisan commission of constitutional scholars to review the structure of the federal courts — which are “out of whack,” he told a “60 Minutes” interviewer last week — and propose changes within 180 days. Speaking to reporters Monday, he at first appeared to reject term limits — “it’s a lifetime appointment,” he said — but then stepped back and left room for Khanna’s legislation, the only such proposal in Congress so far.
“There’s some literature among constitutional scholars about the possibility of going from one court to another court and not just always staying the whole time on the Supreme Court,” the Democratic candidate said. “But I have made no judgment.”
Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko
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