As we saw from the blockbuster close of its most recent term, the Supreme Court — and not Congress or the executive branch — is deciding today’s most pressing and controversial public policy questions. Accordingly, presidential candidates have joined in a chorus to call attention to the court and explain what a vote for them would mean for its future.
Democratic hopefuls Hillary Clinton and Vermont Sen. Bernie Sanders have announced that they would nominate only individuals who favor overturning a 2010 campaign finance decision that led to a rapid influx of money into federal elections.
On the right, former Arkansas Gov. Mike Huckabee has railed against the Supreme Court having the final say on the constitutionality of laws and pledged never to “bow down to the false gods of judicial supremacy.” Former Florida Gov. Jeb Bush, in distancing himself from justices appointed by his father and brother who turned out not to be as conservative as some had hoped, has pledged to nominate individuals with proven track records of “not legislating from the bench.” And most recently, Texas Sen. Ted Cruz proposed judicial retention elections to give the American people a stronger check on the power of the third branch.
It’s a good thing candidates are focusing on the Supreme Court. But that focus should include a larger discussion on the outdated, baked-in reasons for the nine justices’ unchecked power: life tenure.
Life tenure was originally instituted to shield the third branch from political and financial interests. But that clearly isn’t the case today, as the justices regularly speak at partisan events and fundraisers, quote biased “news” articles and fail to step aside from cases in which they have inside knowledge or related assets.
Meanwhile, presidents are nominating younger and younger individuals to maximize their own impact on history. But with humans living significantly longer today than in 1789 when life tenure was codified, the justices’ time on the court has begun to stretch on for decades on end, leaving the American people with an institution that looks and feels more feudal than democratic.
When the next president is inaugurated in Jan. 2017, three Supreme Court justices — Ruth Bader Ginsburg, Antonin Scalia and Anthony Kennedy — will be in their 80s, with Justice Stephen Breyer trailing closely behind at age 78. At that time, those four will have collectively served on the high court for 106 years, averaging out to more than 26 years per justice.
This reality, combined with the fact that the court has become our most powerful, least accountable government institution, is giving new energy to a proposal to limit the service of Supreme Court justices to a single, non-renewable 18-year term.
Long supported by progressive legal scholars, such as UC Irvine’s Erwin Chemerinksy and Duke’s Paul Carrington, championed by former Texas Gov. Rick Perry during the 2012 presidential race, and backed today by Kentucky Sen. Rand Paul and Ben Carson, term limits for the Supreme Court — staggered so one justice would leave the bench every two years — would equalize presidential influence over the court while giving new appointees ample opportunity to master the job and make their mark.
Unlike the litmus tests and judicial retention elections that some candidates have suggested, 18-year terms would bolster the court’s independence from politics, putting an end to the practice of justices gaming their retirements for when a like-minded president sits in office.
Reforming the Supreme Court is long overdue. The last time we made a significant change there was in 1869, when we decided that nine was the number of justices who should sit on the bench at one time.
It’s time to make another change, and given the attention that the 2016 candidates are already giving to the court, I hope they go a step further and look at the reasons why the justices have become the most powerful people in Washington. It’s time to end life tenure to bring the high court more in line with its constitutional mandate: To be the third branch.
Gabe Roth is executive director of Fix the Court, a national non-profit that advocates for a more open and accountable Supreme Court.Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
