Democrats prepare bill limiting U.S. Supreme Court justice terms to 18 years

[yortsed snacilbuper]

Democrats in of the House of Representatives will introduce a bill next week to limit the tenure of U.S. Supreme Court justices to 18 years from current lifetime appointments, in a bid to reduce partisan warring over vacancies and preserve the court's legitimacy.

The new bill, seen by Reuters, would allow every president to nominate two justices per four-year term and comes amid heightened political tensions as Republican President Donald Trump prepares to announce his third pick for the Supreme Court after the death on Sept. 18 of Justice Ruth Bader Ginsburg, with just 40 days to go until the Nov. 3 election.

"It would save the country a lot of agony and help lower the temperature over fights for the court that go to the fault lines of cultural issues and is one of the primary things tearing at our social fabric," said California U.S. Representative Ro Khanna, who plans to introduce the legislation on Tuesday, along with Representatives Joe Kennedy III of Massachusetts and Don Beyer of Virginia.

limits

[Ritabert]

1. 12 years max

18 years is too long.

[yortsed snacilbuper]

4. True,

better than life though!

[blueinredohio]

2. 18 years is too long.

[JI7]

3. Not sure I like this at all.

[Awsi Dooger]

7. Not sure I like it

But hopefully they polled it.

I wouldn't throw out something like this on a guess

[BannonsLiver]

76. Do Dems ever do anything right in your view?

[Sherman A1]

5. Ah,

Sounds like one of Andrew Yang’s proposed policies.

[Ms. Toad]

6. Lifetime tenure is a set out in the constitution -

at least as the constitution has been interpreted.

So it is unlikely that a statute changing it would be determined to be constitutional.

[ProfessorGAC]

8. Was Just About To Proffer That Question?

I was thinking this would require an amendment.
But, I guess I trust the legal minds on the D side of the aisle.
Somebody must at least have considered that before they floated this publicly.
At least I hope so.

[marie999]

11. Do you really think that the members of Congress really only float ideas

that are constitutional?

[dware]

13. Yeah,

I had to laugh at that one also.

[ProfessorGAC]

19. A Slam At Dems? On DU?

You sure you don't want to self-delete your "both sides" silliness.

[marie999]

73. Do you think the bill mentioned in this article is constitutional?

[Yo_Mama_Been_Loggin]

10. You're right

Needs to be a constitutional amendment.

[FakeNoose]

17. Yes, but it will never happen, just like the ERA Amendment

We all know what happens when the RWNJs get wind of anything the progressives want to do.

It matters little whether it's for the good of the country. What matters to THEM is "stopping the libtards" from accomplishing anything.

[MH1]

12. The article describes how the bill addresses that

They propose a mechanism that rotates the SC Justice to a different judicial position after 18 years. So they have a lifetime appointment but it is not all at the SC. As I understood the article, anyway.

[dware]

14. And just who do you think will be reviewing the

Constitutional merits of such a law?

[MH1]

85. Not me, that's for sure.

Probably the SC, and if that's your point, it's a good one.

But, my post wasn't passing judgment on the merits of the idea, just passing on that the description is in the article.

[dware]

86. Got it, now I understand your post.

Have a great weekend.

[Volaris]

20. With no additional consideration, that seems even less feasible;

After nearly 20 years at a career high level job, who the hell wants to get demoted?

[VMA131Marine]

26. So they can retire if they don't want to serve on a lower court.

[Volaris]

72. All right, that's a good counter; I'll take that.

[Ms. Toad]

33. I don't think it will fly

Some legal observers, including those who favor term limits, say they must be accomplished through an amendment to the U.S. Constitution, which has been interpreted as requiring life tenure for federal judges and justices.

The bill seeks to avoid constitutional concerns by exempting current justices from the 18-year rule. Those appointed under term limits would become "senior" upon retirement and rotate to lower courts.

Congress can't resolve a longstanding interpretation of a constitutional provision by exempting current members of the court from the impact of a new statute. It is the supreme Court that interprets the constitution, not Congress.

There is historical precedent for Supreme Court justices serving part of their time in lower courts, but it wasn't a permanent change. They rotated in an out of the lower courts while remaining on the Supreme Courts - a kind of visiting judge arrangement. The proposal I've seen that might have more chance of passing constitutional muster is an expansion of the court with rotating panels to the circuit courts. In other words they aren't setting term limits - just rotating in and out of the panel that hears cases.

I'm not sure I like that proposal - it is likely to create the same kind of irregularity of opinion that we see in the Appellate courts (the decisions are often very dependent on who is sitting on the particular panel that hears the case).

[StarfishSaver]

45. The Constitution doesn't provide for justices to be "rotated" onto other courts

This is just posturing, plain and simple.

It's a stupid idea.

[reACTIONary]

60. I read this proposal earlier today...

... The originators claim it is constitutional because the constitution says the shall serve during good behavior but not what service they would provide. So what the term limit does is move them off the high Court to the lower courts.

Of course it will be the high Court that decides if that argument is valid or not.

[Tom Traubert]

77. But the idea is to allow senior status.

The justices would continue on senior status and preside over a reduced load of district court cases until they want to retire. This would be a lifetime appointment of sorts. It’s an interesting way around the Article III, section 1, which doesn’t expressly say appointments are for life, but certainly says it by implication:

“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

I’m not sure this works, but who knows?

[Ms. Toad]

79. Except that it doesn't "Allow" senior status - it forces it.

Senior status currently exists for the lower courts - BUT - the judges determine if/when to move to senior status. This proposal would force it at 18 years.

You are correct as to the lifetime appointment being implied, rather than expressly stated, but it has been interepreted to mean lifetime appointment.

Care to guess who interprets the constitution? One hint: It's not congress or the president

[Tom Traubert]

80. Don't disagree.

It’s an uphill battle. But a Democratic House and Senate, along with Biden as President, could enact the necessary legislation. Sure it could end up before the Supreme Court, but so will any plan to pack the Court, and it certainly would put the justices in a precarious position, and I’m not so sure what the result would be.

[Ms. Toad]

83. Packing the court is not a constitutional matter -

It is well estalished that the number of justices is within the purview of Congress. So "packing" the court by expanding the number of justices won't end up before the court.

It may not be a wise move, however, since if we can expand the court now, so can the next Republican administration that comes along.

[Thekaspervote]

9. Hopefully we can make that happen under #46..JOE BIDEN

[VarryOn]

15. I would vote for this, but...

I'd rather see an age limit. Maybe 75 years old. With that, a 45 year old appointment could stay 30 years. Tenure is a good thing; old age not so much.

[onetexan]

21. I'd like to have it capped both by age @75 & Term limit 10 years. 18 years is way too long.

[PoindexterOglethorpe]

46. And every single year a new justice would be appointed and there would be

the usual hearings. Pretty soon a significant percent of Senate business would be voting on a new justice.

[treestar]

16. I like the idea, though it may need a constitutional amendment

They could still be independent - they don't get kicked off until the end of the 18 years, no matter how they rule. It's random how long each will live or when they might retire. Making it regular is also fairer in that one side doesn't get more because more deaths or retirements happen during their term.

[Hassler]

18. Raise it to 19 justices and make it like appeals court where

3 are picked lottery style to hear the case. Repubs will make 29 and so on until we get to 99.

[Klaralven]

36. Japan has 15 with a retirement age of 70

Most cases are heard by one of the three panels of 5 justices.

[BannonsLiver]

22. Should have never been a lifetime appointment

People died younger when that was decided.

[The Velveteen Ocelot]

25. Actually, they didn't.

Infant mortality was far greater in those days so the average lifespan was shorter. But if you made it through childhood you'd have a pretty good chance of making it to old age. Gabriel Duvall (born 1752) and Roger Taney (born 1777) were still sitting as Justices in their '80s.

[BannonsLiver]

27. Okay, if you say so.

Still should have never been a lifetime appointment.

[The Velveteen Ocelot]

28. Alexander Hamilton explains why they did it that way in #78 of the Federalist Papers:

https://avalon.law.yale.edu/18th_century/fed78.asp "If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty."

[BannonsLiver]

30. I'm not sure the court has lived up to those standards.

Beyond that, the founders have saddled us with things that worked and made sense in their time but are problematic in ours. The EC and 2A are two examples.

Anyway, I’m not a fan of lifetime appointments, with all due respect to the venerable Mr Hamilton.

[Mr.Bill]

52. I would also add that

freedom of the press is not working out like they intended either. Neither is freedom of religion when it seems to include the right to force your religion on others.

[mnhtnbb]

63. Life expectancy at age 20 for white males in the 1790's

Last edited Fri Sep 25, 2020, 09:22 AM - Edit history (1)

displayed





From this peer reviewed NIH study: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2885717/#!po=18.8202




The Judiciary Act of 1789 fixed the number of justices at six: one chief justice and five associate justices.

The ages at which those first six were appointed to the court and left the court, either by resigning or dying.


Age upon appointment and at death or resignation

Jay 44 resigned 50

Rutledge 50 resigned 52

Cushing 57 died 78

Wilson 47 died 56

Blair 57 resigned 63

Iredell 39 died 48


The average age at which the first group of justices resigned or died was 57. And the average length of service was
< 9 years. Take Cushing out who served for 21 years and the average length of service drops to just under 6.5 years.

[Calista241]

71. Taney is perhaps the worst Chief Justice ever.

Not to distract from your point or anything.

[Agschmid]

23. Edited: After some research I see how this could work.

Last edited Fri Sep 25, 2020, 11:37 AM - Edit history (1)

[The Velveteen Ocelot]

24. How is that going to get around the Constitution, or at least the usual interpretation?

Article III, Section 1 - The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

One might argue that the phrase "shall hold their offices during good behaviour" doesn't necessarily mean lifetime appointment - and maybe strict textualists like Gorsuch and Kavanaugh would have a tough time arguing that it does. But the proposal really isn't likely to go anywhere, since Article III has always been interpreted as meaning impeachment is the only way to remove any federal judge.

[bucolic_frolic]

51. Obviously time to redefine "good behaviour"

It's a facetious stretch. Ornery, crabby, cantankerous. There is a time when it's time, though such a variable is defined is beyond me.

[fescuerescue]

29. I wonder how the SC court will rule on the constitutionality of THAT one

I suppose they would all have to recuse themselves

amite?

This is a feel good bill. Nothing more.

[Tribetime]

31. I think 10 to 12yrs max

[DetroitLegalBeagle]

32. There is still the problem of forcing them to take Senior Status

Senior status exists already, but its entirely up to the Judge to take decide to take it. Forcing them to take senior status will get challenged under the basis that they are being forced out of their office.

[StarfishSaver]

48. Only the lower court judges take senior status

Supreme Court justices remain in active status until they retire or die.

[DetroitLegalBeagle]

58. Yea

I meant to say that that. I should have said it looks like they are expanding it to Scotus, with the addition of forcing them into status.

[StarfishSaver]

59. Gotcha

[Sgent]

67. Sandra Day O'Connor

took senior status when she retired from SCOTUS and continued hearing the occasional cases at both the circuit and district level.

[StarfishSaver]

74. I didn't know that

I just looked it up and see that Powell and Brennan also did that.

Thanks! I learned something new.

[inwiththenew]

34. The short term fix would be to encourage judges to be more strategic or forward thinking with their

retirement and to retire under a friendly president. I know this is not going to be a popular take here but once you hit 80 you should start looking for a replacement. This position has generational impact and you serving an extra few years is going to pale in comparison to a hostile president appointing a justice that is a polar opposite to you that could serve for 30 years.

[Azathoth]

35. 18 years? Really? Ten years and done

Maybe 15 for the other federal courts. There is absolutely no reason for lifetime tenure. None. It's just a perpetuation of the precedent set by the House of Lords being the highest court in the land.

The notion that only nine legal minds from every generation will get to sit on the highest court in the land is downright offensive to anyone with an interest in democratic government.

[mnhtnbb]

37. Life expectancy of white males in the late 1700's

was less than 40 years.

We have seen weaknesses in The Constitution revealed by this Trump regime and unwillingness of Republicans to stand up to him.

It is way past time to adjust the Senate, to abolish the Electoral College and to eliminate life terms for judges.

[Mr.Bill]

55. See post #25. n/t

[mnhtnbb]

64. See post #63. n/t

[Mr.Bill]

81. When you're talking about life expectancy for a species

a sampling of a handful of people is anecdotal.

[mnhtnbb]

82. Indeed.

Would that we only still allowed dueling to settle insults. Maybe one of the women who have accused Trump of sexual assault could challenge him to a duel. Or better yet, the justice accused of rape.

Just think, one of them might go down in history along with Hamilton.

[bucolic_frolic]

38. Expand the Court, they turn down too many cases

And tJustices should be 50 or over, and serve no more than 20 years. Every President should appoint 1 and no more than 2 in a four year term. Second terms only one. if they're vacant for awhile, so be it. If ties occur, that's the luck of the draw.

[RhodeIslandOne]

39. This will simply make things more confusing.

[Hotler]

40. Oh how the Christian right will howl. Edit to add.

They will start speaking in tongue.

[marble falls]

41. Thats the one SCOTUS change I can support.

[StarfishSaver]

42. This can't be done by statute - it would have to be a Constitutional amendment

The Constitution provides that all Article III judges - including the Supreme, Circuit and District Court judges - serve for life.

[jorgevlorgan]

47. That is a common misconception

Now let’s address possible concerns over constitutionality. First, recall that the Constitution does not expressly grant “life tenure” to Supreme Court justices. Rather, this idea has been derived from the language that judges and justices, as noted above, “shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”


Our proposal does not contravene these requirements as it would keep justices on the bench, as fully compensated senior justices, after having served 18 years at the Supreme Court. Senior justices could sit on lower federal courts, as many retired justices have done, or fill in if there’s a prolonged vacancy.

https://fixthecourt.com/fix/term-limits/

[StarfishSaver]

50. It's not a misconception. It's true in both fact and precedent.

Regardless what the good folks at Fix the Courts think

[jorgevlorgan]

69. There is no wording that requires the a justice be in the same position for life.

Nothing explicitly says that. Moving the justices to different courts would be more than enough to satisfy the language of "“shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

[StarfishSaver]

75. "shall hold their offices" refers to the seat they were nominated and confirmed to

Under your interpretation, Congress could bust Chief Justice Roberts down to a federal magistrate - or even possibly to an assistant secretary at Commerce - any time it chose.

Congress doesn't have the power to remove an Article III judge, outside of impeachment, and move them around the judiciary or other areas of government after they've been confirmed.

[jorgevlorgan]

43. Roberts would be out in 3 years if that's the case, right?

Alito in four years? And Thomas would be out. I like this idea a lot. I support term limits for everybody. Also Republicans have been the main promoters of term limits in the past. Ideologically they should be completely on board!

[StarfishSaver]

53. No. It wouldn't apply to any of the current justices. Only future ones.

So, Biden judges would be out in 18 years while Roberts, Kavanaugh, Gorsuch and Alito - and even Thomas if he lives long enough, would stay as long as they want.

As I said. Stupid idea.

[marybourg]

44. Bad cases make bad law.

[mwooldri]

49. Personally I'd prefer expanding the court...

... to 12 justices. All cases to be heard by panel consisting of an odd number of jurists. Maximum number that would hear a case is 11. Random justice would sit out on the serious cases requiring 11 justices. Most cases would be heard by 5 or 7 justices and again chosen at random.

This would have the effect of depoliticizing the court as one would not know if the case in question would come up before 5 "conservative" or 5 "liberal" judges.

But that's just my thought.

[Yavin4]

78. Agreed. Right now the SCOTUS is just an extension of the Republican senate.

Anything that they cannot stop through the legislation process they will just put it before the SCOTUS.

[Dopers_Greed]

54. Good. Life appointments for justices are absolutely ridiculous

The Founding Fathers probably didn't foresee today's extreme levels of corruption in government.

[StevieM]

56. This bill misses the point.

We currently have a court that feels they have the right to say that anything they deem too liberal is unconstitutional by definition. That brings us to an immediate crisis point.

If they strike down Obamacare, or declare right-to-work the law of the land nationwide, then we are no longer the same country that we have been for 200 years. There is very little democracy left at that point, even when compared to other periods when the extent of our democracy was limited.

[StarfishSaver]

57. Exactly

Limiting justices' terms would have no effect on any of this.

In fact, it could only make it worse since Justices - like Members of Congress - would have to always consider their next job.

[jorgevlorgan]

70. It seems like more of "this will help rectify a serious issue in the future,"

and as you said, does not thing to rectify the current problem. Stacking the court, however, would pretty much do the job.

I support this law because I generally support term limits for everything, but also think we should reform the court by adding justices.

[pecosbob]

87. Which brings us to the question of the Executive's statutory responsibility for enforcement

As the Supreme Court has no enforcement authority, it falls upon the executive to enforce the actions ordered by the Supreme Court. In this age of political dysfunction one might ponder the (next) President's potential courses of action when faced with a politically unfavorable ruling. The Supreme Court was expected to declare parts of Roosevelt's New Deal legislation as unconstitutional (some of which probably were in fact unconstitutional, depending upon interpretation). Bottom line...Roosevelt threatened to pack the Court and the Court backed down. The GOP has commonly refused to act on the Court's rulings in the past...they simply circumvent the Court's rulings with administrative bullshit.

I know little about the Constitution's language concerning the Executive's responsibilities regarding the Supreme Court and enforcing judicial rulings in general, but it seems to me in the real world the Executive can mostly do what it wants to ignore unfavorable rulings.

[LuvNewcastle]

61. I don't think we can get around changing some things

about the Court for the health of the country. If the Founders had foreseen any of the controversy we have today, I think they would have put further restrictions on the amount of time a Justice can serve and possibly age restrictions as well.

First of all, there should be an age requirement for a Justice to meet before being considered. There's a requirement for President, Congressmen, and Senators. Not only is it a way to help ensure a certain level of maturity to hold the office, it also would prevent partisans from nominating young candidates who will sit on the Court and influence it for an inordinate amount of time.

An age limit would be a good idea, not only for the Court but for all federal offices. While it wouldn't guarantee that there would never be significant mental and physical deterioration while in office, it would make it less likely. Besides, some people just never know when to quit, both for the good of the country and for their own good.

Finally, it might be a good idea if Justices were limited to serving a certain number of years. I'm thinking, rather arbitrarily, that 16 might be good as a continuation of the 2,4, and 6 year terms of Representatives, Presidents, and Senators. I would have said 12 years, but I think it's better that they serve a little longer, in hopes that it will encourage consistency in Court decisions.

Any of the changes listed above would likely require an amendment. Presidential term limits took an amendment, so I think these changes would be seen as comparable. Amendments take a lot of time and Americans are often loathe to consider starting them for that reason, but in the case of USSC reforms, I think an amendment is desperately needed. The sooner we get one started, the better. Maybe if the Democrats can build a good majority in Congress, we can begin the process.

[ooky]

62. Why should their terms be any longer than a president can serve?

8 years max.

18 years is a lifetime.

[ecstatic]

65. Fine, but I still want to see more seats added.

The 6 to 3 split should not continue (assuming the GOP adds another seat).

[JI7]

66. Not surprised Ro Khanna would push something like this but i'm disappointed in Joe Kennedy for going

along with it.

[jmowreader]

68. The reason for the 18 years...

Their intent is to have one new justice every 2 years.

2 years x 9 justices = 18 years.

The alternative is a 9-year term, replacing one justice every year. 12-year terms don't work with a nine-justice rota.

And while we're at it, what are we going to do about the lower courts? Trump's appointees have been causing damage there too.

[consider_this]

84. average lifespan in early 1800s was about 38 years old.

I havne't even read all of the comments above, so if someone mentioned, it - sorry for dup.

Just a thought that considering lifespan, I wonder if the framers ever expected the protracted term of a life appointment as it would be today?