No Supreme Court Term Limits—Even With Partisan Justices Like Scalia and Thomas

The push to limit justices' time in the Supreme Court is just plain unconstitutional.


By John Aloysius Farrell, Thomas Jefferson Street blog

I have always thought that term limits were stupid. Or, perhaps more accurately, that the underlying assumption of the term limits movement was that Americans are stupid—and can't be trusted to conduct the necessary political house-cleaning at the polls.

Then there was the coincidence that, as the Republicans got to majority status over the last few decades, conservatives lost interest in the notion of limiting terms—an idea they promoted so enthusiastically when Democrats were in power.

Now that the Dems are back, we'll no doubt be seeing a rebirth of the movement over on the Right. But before we do, I want to register my opposition to a new term limits proposal—for Supreme Court justices—that would benefit the Left.

As was noted in this morning's Washington Post, a group of "law professors and jurists" want to reform the high court—by undermining the constitutional requirement that Supreme Court justices are appointed for life.

Since this might put an end to the influence of five Republican appointees on the court—including Antonin Scalia and Clarence Thomas—one might suppose that I would be in favor of such tinkering. Sorry, no.

When it comes to the Constitution I am a pretty conservative guy. Snip a bit from the 2nd Amendment for the Left, and pretty soon you're chopping up the First Amendment for the Right.

It's true that life spans were shorter in 1789, and that the Founders never got to see the atrocious federal judiciary of the late 19th century, and early 20th century, and how long those reactionary coots lingered in office. But I still believe that the Founders' instinct was correct: lifelong terms give justices the political independence they need to do their job—calling the game fairly, and protecting folks' rights.

Geez! Even with their everlasting job security, the members of the current court have been blatantly ideological and partisan. Or have we forgotten the 2000 presidential election?

But it's not the Constitution's fault that the extremists of Right and Left now dominate the judicial selection process. Presidents are supposed to have the spine to say no to the fringes.

The academics who want to change the Court have some tricky little maneuvers in mind, designed to negate the effect of a lifetime appointment, without actually taking the difficult steps of amending the Constitution. (Again with the insult to the voters. Apparently we're too dumb, or lazy, to change the Constitution the proper way.)

Well, who knows, the notion of capping Supreme Court terms may someday catch on. The judiciary is not immune to Americans' historic impatience with those who use their office for personal gain, rather than the common good.

And so, may I suggest to the current crop of justices that, just once, it would be nice to have one of you leave on your feet—to a well-deserved retirement or another fruitful branch of public service—instead of on a gurney, or in a coffin?

It would defuse attacks on your independence.

After all, the Constitution says you Can stay for life.

It doesn't say you Have To.

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