Justices should be removed from the Court after a period of 14 years
has nominated 10th Circuit Court Judge Neil Gorsuch to replace the seat vacated by the late Antonin Scalia on the U.S. Supreme Court. Although former President Barack Obama had named a different nominee, Merrick Garland, to fill the seat, Senate Republicans stalled and obstructed any vote for Garland.
And even when it looked as though Hillary Clinton would be the next president, some GOP Senators suggested continuing their obstruction, indefinitely keeping the Supreme Court at eight justices.
Now, however, Republicans are singing a different tune, and suggesting that they could implement the so-called “nuclear option” if Democrats dare to filibuster Gorsuch’s appointment. How things have changed.
But I don’t want to talk about Gorsuch in this posting. Rather, I want to talk about the necessary change we need to make to our Supreme Court – eliminating the lifetime appointments that each justice receives when he or she is seated on the High Court’s bench.
The Constitution guarantees that justices “shall hold their offices during good behaviour.” They can only be removed through impeachment. And while there is no clause explicitly granting them a lifetime appointment, there’s also no clause limiting their time in the nation’s highest judicial chambers.
That should be changed. At the time of its adoption, the life expectancy of Americans was much shorter than it is today. And though justices of the Court were typically wealthier and more likely to have a higher life expectancy, their tenures were usually shorter than they are today. Indeed, the first ten chief justices of the United States served an average of 14 years on the bench. The last three chief justices, meanwhile (not counting current Chief Justice John Roberts), all served beyond 15 years in their role.
That length of tenure – 14 years – seems to me like a good standard for how long a justice should serve on the Court. And while some may object to limiting how long justices should serve, the idea isn’t inconsistent with what others are suggesting when it comes to term limits for members of Congress. Indeed, before the middle of the 20th century, term limits for the president didn’t exist either, but a Constitutional amendment passed that changed the rule.
Even some conservatives, like former Arkansas governor and Republican presidential candidate Mike Huckabee, want to limit the time justices should serve. “Nobody should be in an unelected position for life,” he said in 2015. He added:
If the president who appoints them can only serve eight years, the person they appoint should never serve 40. That has never made sense to me; it defies that sense of public serviceToday, there are four justices on the Supreme Court who have served more than 20 years on the bench. That four of the eight current justices have served that long is absurd. There should be a limit on how long someone can be a member of the Supreme Court, and 14 years seems like a reasonable amount of time one can serve.
A limit of 14 years is beneficial for many reasons. First, it allows a steady flow of new minds to enter the High Court. While older justices adhere to their own generational biases, newer justices will undoubtedly apply the law with modern insights to go with them.
Second, a guarantee of new justices every few years (if 14-year term limits are staggered) makes presidential elections less dire events. Every four years, it seems we are burdened with “the most important election of our lifetime” simply because the next president will be slated to appoint X number of justices to the Court. While the importance of the president’s possible choices for the Supreme Court will still matter, term limits on justices ensures that turnover will occur, and that the consequences of their election won’t be so drastic.
Supreme Court justices are unelected, unaccountable members of the federal triumvirate of governance. Once they get into their positions of power, they are allowed to remain there for as long as they like. A Constitutional amendment, one that limits how long a justice can sit on the Court, should be considered by Congress and the American people.
We’ve changed the Constitution to limit how long other branches of the federal government can serve – it shouldn’t be that far-fetched to limit how long members of the judicial branch should remain in place either.