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Americans Want to Term Limit the Supreme Court—and That's Exactly Why It's a Bad Idea

Beware of silver bullets, America.
President Reagan and Antonin Scalia, then a Supreme Court nominee, in 1986. (Photo: Wehwalt/Wikimedia Commons)

President Reagan and Antonin Scalia, then a Supreme Court nominee, in 1986. (Photo: Wehwalt/Wikimedia Commons)

Americans are fed up with the Supreme Court. According to a recent Reuters/Ipsos poll, some 66 percent of Americans support a 10-year term limit for justices. Currently, justices serve a lifelong term until their retirement, death, or impeachment. While it may seem easy to chalk renewed interest in court tenures up to outrage over the high court's rulings on Obamacare and same-sex marriage—and the grumbling of presidential hopefuls like former Alabama Governor Mike Huckabee and Texas Senator Ted Cruz—it's not just disgruntled conservatives; sixty-six percent of Democrats, 74 percent of Republicans, and 68 percent of Independents surveyed are open to the idea of limiting justices' time served.

In the American political system, the Supreme Court can be a stolid foundation of jurisprudential longevity. Justices William Douglas and Stephen Field served 36 and 34 years in office, respectively. Antonin Scalia is the longest serving of the current bunch, with 28 years on the bench. These justices outlast the fickle whims of presidents and congressman, and the short-term fluctuations of partisanship and personal vendettas. In an ideal world, the long tenure of the Supreme Court sets the judicial branch above the fray of daily politics.

These justices outlast the fickle whims of presidents and congressman, and the short-term fluctuations of partisanship and personal vendettas.

Though far from politically feasible—a change would require a Constitutional amendment—Supreme Court term limits have been heavily debated among legal scholars. In a 2006 issue of the Harvard Journal of Law and Public Policy, Northwestern professors Steven G. Calebresi and James Lindgren argued that the natural term limit of death or infirmity is no longer a significant barrier, noting that the average tenure of retired justices jumped from 14.9 years between 1789 and 1970, to 26.1 years after 1970. One 2007 study by Williams College political scientists casts further doubt on the "old age" problem, attributing court dysfunction to the decline of short-term justices. Either way, the resulting extended tenures of modern justices in turn "reduces the efficacy of the democratic check that the appointment process provides on the Court's membership," according to Calebresi and Lindgren—a process that has become increasingly politicized over time.

But recently, arguments levied by politicians and academics have been attuned to a more specific hang-up than longer lifespans: The partisan neurosis of the American political system. The court "is polarized along partisan lines in a way that parallels other political institutions and the rest of society, in a fashion we have never seen," political scientist Norm Ornstein argued in the Atlantic in 2014, proposing an 18-year term limit that, with a nine-justice Supreme Court, would ideally eke out two appointments for every presidential term. Ornstein continues:

A couple of years ago, David Paul Kuhn, writing here, noted that the percentage of rulings by one-vote margins is higher under Roberts than any previous chief justice in American history. Of course, many decisions are unanimous—but it is the tough, divisive, and most important ones that end up with the one-vote margins.

Supreme Court building in Washington, D.C. (Photo: Mark Fischer/Flickr)

Supreme Court building in Washington, D.C. (Photo: Mark Fischer/Flickr)

Really, there's no solid argument not to tweak the Court. Franklin D. Roosevelt tried to add more justices to the court with the Judicial Procedures Reform Bill of 1937, the legislative instrument of his "court packing plan," meant to weight the court toward favorable rulings on his New Deal proposalsRoosevelt's own (shortened) four-term presidency was the only real catalyst for the modern presidential term limits that constrain the executive branch (a measure that gained political traction during the 1944 president race, when Republican Thomas Dewey declared "four terms, or sixteen years, is the most dangerous threat to our freedom ever proposed"). And apart from the Reuters/Ipsos poll, some 52 percent of Americans reported in a 2010 poll that they'd be OK with the 18-year term limits like those proposed by Ornstein and his ilk.

But the arguments for a term-limited Supreme Court are based on the very partisan anxieties—that the justices are unaccountable rogues who enforce their own "biased" interpretation of the law (like, say, upholding the "tyranny" of Obamacare or legalizing same-sex marriage)—that so-called reformers seek to constrain with new justices, and that makes them so much more dangerous. It's not just in the rhetoric of Republican presidential hopefuls desperately seeking a bump in the polls; Ornstein's own analysis seems to place responsibility for the modern polarized court on the "Machiavellian" John Roberts (who deserves the nickname, if only for his skillful maneuvering on Obamacare's first court challenge) and the traditional tie-breaker Anthony Kennedy. The push for term limits, despite grounding in some fair legal scholarship, is itself indelibly marred by petty, strategic partisanship, it's primary goal to reduce the Supreme Court to a manageable political entity subject to years-old political machines—as though making the highest court in the land devote its focus to the constant electioneering of congresspersons than, say, studying the Constitution is good for the judiciary.

The current Supreme Court's popularity is at a historic low, but term limits don't represent a pure way of saving the court from the political realities of American government in the 21st century. In truth, the proposal is a distraction, dressed up as some sort of arcane constitutional backflip. "Limiting the terms of public office is, in our view, utterly unresponsive to any significant dimension of our dysfunctional politics," Thomas Mann wrote in 2012's Five Delusions About American Politics. "It belongs in the same trash bin as smug reverence for the status quo, independent presidential candidates and balanced budget amendments." Limiting term limits is a sacred cow, deployed under the cover of civic virtue in the service of a cynical brand of politics. Don't believe me? Mann had a co-author for Five Delusions: Norm Ornstein, the same guy who would argue for term limits just two years later in the Atlantic. In the span of two years, spurred by frustration over conservative stonewalling in Congress, Ornstein went from being ardently against term limits to proposing them. That's not necessarily the best reason for a major constitutional change.

More importantly, these squalls pass: Long-term structural changes to the Court are much harder to undo. Calls for term limits blow over "in part because it’s hard to sustain a long period of going against democratic majorities," Williams College political scientist Justin Crowe told Pacific Standard in 2012, at a time of political jousting over the fate of the Affordable Care Act. "Ultimately, the court falls in line, the court does what democracy wants."