Time to Create a Term Limit on Serving on the Supreme Court

This essay is inspired in general by the retirement of Justice Kennedy, leaving the ideologically driven radical reactionaries that have taken over the Republican Party within reach of their long time goal of a strong 5 Justice Majority that will act as an extension of the "Conservative" movement. Goodbye Roe v Wade. Goodbye Obergefell v. Hodges. Quite possibly goodby "you have the right to remain silent, if you cannot afford an attorney, one will be provided for you." All of the landmark cases that rest on arguments regarding the extent of the rights to Due Process guaranteed by the 14th amendment, and all of the landmark cases that rest on arguments regarding "penumbral" rights, are subject to destruction due to the extra-Constitutional theft of President Obama's last Supreme Court nomination.

It is inspired in particular by the narrow fallacy of dichotomy argument posed by Armando on the June 28 Kagro in the Morning Show (Minutes 47 to 50):

That fallacy of dichotomy argument is that the choice is between having the "Freedom Caucus" enact reactionary right wing policies via the Supreme Court, and the Democrats packing the court, leading to the Republicans packing the court when they have a chance, leading to the Democrats packing in return, etc., destroying the legitimacy of the Supreme Court.

But there is another option. That is to introduce term limits.

"Hold On", you cry ... "lifetime appointments of Federal Judges are part of the Constition."

But read more carefully. What the Constitution says is:

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. 

Here's the loophole: the only Supreme Court Office that is mentioned in the Constitution is the Chief Justice. So, arguably, that is an "office" that shall be held "during good behavior."

But the offices of Associate Justices are created by Statute. A different office can be created. Call it the Superior Federal Judge. One of the duties of the office is to serve as Associate Justice for a period of 18 years. Whenever there aren't enough Superior Federal Judges to provide Eight Associate Justices, the President nominates another one, with advice and consent of the Senate.

We might try to fix another problem shown by the Garland nomination. The statute might define it as tacit consent if the Senate does not move to a vote on the nomination within thirteen weeks of the nomination, so long as a nomination is made more than thirteen weeks before the tenure of the current Senate. I don't know if that would fly ... but what the hell, as long as the institution is getting fixed up, might as well fix all of the most serious problems.

Now, some mechanics. The Supreme Court is a stately thing, and so this should be a relatively stately process. Mandatory retirements happen at the end of a Supreme Court session in an even year. If more than one Superior Federal Judge serving as Associate Justice is due to cease serving as Associate Justice (not as Superior Federal Judge ~ the office if held "in good behavior,"), then the one that has been nominated and approved the longest time ago is the one that ceases to serve.

Obviously, the post-Kennedy, Trump-swung Court will be a Republican Party wet dream, so this all assumes a Democratic clean sweep ~ White House, House of Representatives, and Senate, which is to say, "2021 or bust". So, what would the status of the former Associate Justices, now Superior Federal Judges serving as Associate Justrices, be at the end of June, 2022, assuming Kennedy's replacement is rushed through and approved by October.

Chief Justice John Roberts, Sept 29, 2005. 17 years and in the queue to leave in 2024 if the Chief Justice can be brought into this (which might not fly, given the explicit naming of the office as "Chief Justice" in the Constitution, rather than as "Superior Federal Judge serving as Chief Justice")

Clarence Thomas, October 23, 1991. 30 year tenure.
Ruth Bader Ginsberg, August 10, 1993, 28 year tenure
Stephen Bryer, August 3, 1994, 27 year tenure
Samuel Alito, January 31, 2006, 16 year tenure
Sonia Sotomayor, August 8, 2009, 12 year tenure
Elena Kagen, August 7, 2010, 11 year tenure
Neil Gorsuch, April 10, 2017, 5 year tenure
Kennedy-replacement, notionally October 31, 2018, 3 year tenure

Now, you are going to say, "Bruce, your math is wrong. You get, at best, one member of the Supreme Court version of the "Liberty Caucus" kicked out at the outset, and then it's two on the (moderately) liberal minority, then another radical reactionary.

But this is why everything hinges on even year terms. If the two longest serving "liberal" justices retire in 2021. 2022 or 2023 ... their replacements won't be due for retirement in 2024. And that brings up Alito.

There is no guarantee here of a Court that will deliver progressive populist dream decisions. I wouldn't even harbor expectations of that. Progressive populist policy wins have to be won on the ground. However, there is at least the hope, here, of a Court that will retain hard won rights for government to engage in collective action for the public good and for the populace to retain and expand protections of Liberty and Due Process that have been gained over the past half century.





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