Philip Blumel: What about Supreme Court term limits?
Philip Blumel: Hi, I’m Philip Blumel. Welcome to No Uncertain Terms, the official podcast of the Term Limits Movement. This is episode number 244, published on August 12, 2024.
Stacey Selleck: Your sanctuary from partisan politics.
Philip Blumel: As we suggested was imminent in our last episode, President Biden announced a package of ideas aimed at reforming the Supreme Court. While its timing is clearly intended as a campaign move, the package has origins earlier in Biden’s Presidential Commission on the Supreme Court, which was formed back in 2021. So far, the reforms seem to be more about campaign slogans than detail. Some are for show and some are for motivating the base, but the element capturing the most discussion is also the one with the longest and the deepest pedigree. That is, Supreme Court term limits. So, let’s talk about this. 18-year term limits for justices is an idea discussed but not officially recommended by the Commission on the Supreme Court, but didn’t start with that commission. There is a long literature inside and outside the legal profession on this subject. And it’s not partisan, nor connected to current elections, nor connected to the makeup of the current court, nor is it tied to either political party. It has been advocated by both conservatives and progressives over time.
Philip Blumel: Let’s start at the beginning. According to the US Constitution, justices “shall hold their offices during good behavior,” which as a practical matter means for life, unless they’re impeached by the House of Representatives and convicted in the Senate. And there’s only been one impeachment in history. That was way back in 1805, a justice named Samuel Chase, and he wasn’t even convicted by the Senate. The purpose of more or less lifetime terms is to insulate the justices from the current political pressures in fads and hysterias of their day. It’s not the aim of SCOTUS term limits to change this. That is why there’s consensus for a nonrenewable 18-year term for justices. That is a long time. An 18-year term limit for a legislative position would be a joke, [chuckle] not that we haven’t heard some legislators suggest it.
Philip Blumel: But at the Supreme Court level, it makes sense to have a limit. For one thing, term limits would protect us against cognitive decline, which we’ve seen in the US Congress lately. And we’ve seen this several times on the US Supreme Court itself. There are at least three cases in history that are universally accepted examples of serious mental or physical decline on the Supreme Court that hinder duties, and at least three others where such a diagnosis was widely suspected. In these cases, the problem has generally been handled discreetly, as the history books described it. Or to put it another way, it was covered up. The declining justice was kept out of sight until they died or finally retired.
Philip Blumel: With longevity today far greater than in the 1700s when the “good behavior” language was adopted, it is pretty clear this problem could become worse, and indeed it has. But this is not the primary reason for term limits on the Supreme Court, just as it’s not the main reason for congressional term limits. The main reason is that 18-year term limits would mean that each president would have, under normal circumstances, two Supreme Court nominations to make during each four-year term. It would equalize the influence of each president on the court, so not one party would have, just by luck, an undue influence on the court.
Philip Blumel: And not just luck. The political gamesmanship of when to retire has become standard operating procedure for Supreme Court justices. A celebrated example is when the progressive Chief Justice Earl Warren retired after only 15 years, and he did so early and to a Democrat, President Lyndon B. Johnson, to avoid a Republican choosing his replacement. And remember also that when Justice Scalia died, then President Obama in 2016 nominated Merrick Garland as replacement. But that was election year, and Republican Majority Leader Mitch McConnell stalled the nomination process until a Republican was elected president in 2016. Now, a set term would pretty much end this kind of political gamesmanship.
Philip Blumel: Another related reason is that with longer lives and less rotation in office, the nominations today have far greater political importance as there are less of them, and they’re further and fewer between. And the nomination process has become highly contentious and highly polarized. They’re a mess. Term limits would discourage this, as each administration would more or less be given their turn to make such nominations. This would reduce partisan pressure to pack the court when their political team is not getting their way.
Philip Blumel: Lastly, hey, and this matters, polls show that 70% of Americans, including majorities of people who identify with both the Democratic and Republican parties, favor Supreme Court term limits. Yes, just like congressional term limits, Americans want everything term-limited. So, US Term Limits is calling on state and congressional leaders in both parties to start listening to the public again. A constitutional amendment imposing term limits on politicians and judges might be the most unifying piece of legislation in modern American history. In this era of hyper-partisan warfare, it is needed more than ever. Do you agree with this? If so, please add your voice to the chorus by signing the US Term Limits pledge to term limit the Supreme Court at termlimits.com/SCOTUS. That is S-C-O-T-U-S.
Speaker 3: This is a public service announcement!
Philip Blumel: Micah Beckwith is the Indiana state chair for US Term Limits. Advancing from the Republican state convention on June 15, he is also the official GOP nominee for the Lieutenant Governor of Indiana and will appear on the general ballot on November 5th in the reddest state in the Midwest. With Beckwith’s help, the resolution calling for an Article V convention limited to the subject of congressional term limits passed the Indiana House but stalled in the Senate in 2024. In this clip, Beckwith is asked about the progress of the term limits campaign in his state.
Micah Beckwith: You hear about it from the people when you’re out campaigning. It’s a big issue to the people. To the politicians in Indiana, they tend to not be as excited about term limits, maybe that’s a good word to say, as the people are, which is no surprise. We’ve tried to get our term limits resolution in Indiana passed for the last three to four years, and it just keeps getting kicked down the road. There’s a few legislators, some Republican legislators that keep standing in the way of it. And one of the guys that’s been standing in the way of it is a big critic of term limits, and he’s been in office since I was eleven years old, so. [laughter]
Philip Blumel: Many long-term term limit supporters are bemused by the new call for Supreme Court term limits by politicians who have no history of support for congressional term limits. Take the case of Florida Governor Ron DeSantis. He is okay with the idea of Supreme Court term limits as long as we also term limit the US Congress. Governor DeSantis explains why in a recent press conference.
Gov. Ron DeSantis: Also, just like to make a statement about supposedly now, Biden’s got all these new ideas he’s trying to come up with, and one of them is he’s really going after the Supreme Court. And one of the things that he’s proposed is term limits for the justices of the Supreme Court. And my response to that is, “Why aren’t we doing term limits for members of Congress? That’s what would make the best, biggest difference. Come on.”
Gov. Ron DeSantis: All right, we got anybody back there, any questions?
Speaker 6: In Florida, we have a mandatory retirement age for justices. Would you like to see that at Washington federal level or not?
Gov. Ron DeSantis: So, here’s the thing. Honestly, on the 18-year term limit for justices, so founders, if you go back and read the founders, they said, “You’re gonna serve during good behavior,” which basically meant lifetime appointment unless you did something to get you impeached and removed from office. And they thought that that was important because they wanted the judiciary to be insulated from the passions of the day; that enforcing the Constitution when it’s popular to do so is not that big of a deal. You just follow the wind. It’s tough when enforcing the Constitution cuts against the currents of public opinion. And so, they wanted to insulate them from having to even worry about it. So, something like a retention election would not make sense as the founders understood it. Florida’s constitution is not really… The people that framed that were not necessarily in sync with our founding fathers when they did the US Constitution. So, the whole idea of retention election undercuts what the founders wanted to do on that.
Gov. Ron DeSantis: Age limits, if you’re gonna do it, do it for everybody in office. If you want to do 75, don’t just apply it to justices. Apply it to Congress. Apply it to the Executive. If you’re gonna do that, that would be one thing. But I don’t see how you could say… So, an 18-year limit, you’d serve for 18 years, you’d have a fixed term. You wouldn’t stand for retention or anything like that. Honestly, I don’t know that that really… They don’t like the court now ’cause they’re on the wrong side of rulings. What happens, I think, when these things happen is, you think you’re doing it because you think it’ll help generate more liberal jurisprudence. And in reality, a lot of times it backfires. It may end up, if you had 18 years, that it would force liberals off the bench, and then maybe a Republican would be able to replace it. So, you just don’t know how that’s gonna shake out.
Gov. Ron DeSantis: But I would be willing, if they’re willing to support term limits for members of Congress, that would be a trade that I would make. Because I think if you look at what’s gone on, you have so many people that have been there for decades, and what has happened with the debt over those decades? At the turn of the century, our debt was like five and a half trillion dollars. Now it’s $35 trillion 24 years later. That is a failure. That is a failure of leadership. And I think it’s because, in part, those folks get there and the main thing they try to do is stay there for as long as possible instead of saying, “You have a limited amount of time to make a difference, lead, get things done, then go back and live under the [0:11:26.0] ____.”
Gov. Ron DeSantis: And incidentally, and I’m not saying this is the only reason, in Florida, we have term limits for our legislature. We also have a balanced budget requirement. But notice, we’re the one state with a massive surplus, tax cuts, and AAA credit rating, and paying down debt that we’ve accumulated over 100 some years of Florida history. And part of it, I think, is because you have term limits for the legislature. So, term limits for members of Congress, a balanced budget amendment for the Constitution, and the legislature, they certify both of those for Article V Convention. And they certified, Congress shall make no law respecting the citizens of the United States that does not also apply to members of Congress themselves. And if you did that, they wouldn’t be able to exempt themselves from any laws. So those three reforms, I think, would make a difference. I don’t think the stuff in the Supreme Court, an 18-year limit, would ultimately make a positive difference, but I would be willing to trade that for term limits for members of Congress. But I wouldn’t support it just in a vacuum.
Philip Blumel: Also, the Ohio state chair of US Term Limits, Bernie Moreno, took a tougher stand. Moreno is running against Sherrod Brown for Brown’s Ohio US Senate seat. And on the campaign trail, Moreno scoffed at newbie term limits supporters calling for Supreme Court term limits, and reiterated the urgent need for congressional term limits. Let’s hear him.
Speaker 6: Senator Sherrod Brown’s opponent in Ohio’s Senate race says the call for term limits should be directed at elected officials, not justices that are supposed to be insulated from politics.
Bernie Moreno: A guy who’s been in elected office for 50 years is calling for term limits. You almost can’t make that up, right? Leave the Supreme Court alone. Our founders understood that the judiciary should not be subject to the whims of the day. Where we really need term limits is on the other side of the street, in Congress.
Philip Blumel: Okay. Now, Moreno, let’s be clear, is the real deal. He is genuinely committed to congressional reform and is working with US Term Limits in achieving it. I understand his position. I know full well many newbies SCOTUS term limits supporters have no deep commitment to term limits. Some simply want to alter the current makeup of the court because they don’t like some recent Supreme Court decisions. And others are just trying to fire up their base with an issue that Americans across the political spectrum embrace, term limits. But I have to ask, so what? I can tell you from experience that there are many genuine congressional term limit supporters in the US Congress, but many others are just looking for applause lines, and they don’t have a deep commitment to the cause. Well, we need and appreciate their help too, right? Success is going to take a coalition. It is going to take Dems, Indies, and Republicans. It is going to take the pullers at the oars and the riders on the boat. The new call for Supreme Court term limits is opening a lot of eyes to the benefits of term limits that they’ve been blind to in the past.
Philip Blumel: Now, how can it hurt us that new groups of voters are self-identifying as term limits supporters? Our response should be, I think, “Welcome aboard, friends.” You can get started by signing the new Supreme Court term limits petition at termlimits.com/SCOTUS.
Philip Blumel: Well, okay. So, now we’re back in a familiar spot. We’re confident term limits on the Supreme Court are good policy, and big majorities of voters, whether Democrat, Republican, or independent support them. So, now, how do you achieve them? On the surface, it would appear this would require a constitutional amendment, right? Article III of the US Constitution clearly says that federal judges, federal judges, “shall hold their offices during good behavior.” Surely, it has to be amended in order to add term limits, and the amendment process is outlined in Article V of the US Constitution. There’s two methods, as you know. This means that two thirds of both houses of Congress can propose a constitutional amendment and send it to the states for ratification. Or states can call an amendment proposing convention limited to the subject of Supreme Court term limits, and send its proposal back to the states for ratification.
Philip Blumel: Of course, there is a hybrid approach. State after state can call for an amendment proposing convention as a means of pressuring Congress to act on the issue. This is known as the preemption strategy. Is there another way? Well, maybe. I will tell you that clever lawyers are looking for workarounds. Sure, Article III clearly states that judges shall hold their offices during good behavior, but what if we change the nature of the office? That is, what if, after 18 years, Supreme Court justices rotate down to a lower court within the federal system but technically retain their offices, or maybe they rotate up to an honorary Supreme Court role without power or something like that? These are real ideas that were floated during the President’s Commission on the Supreme Court.
Philip Blumel: Now, I’ll reserve my objections to this kind of approach until we’re given an actual proposal to review. I’d also warn that we should be careful to discern if any term limits proposal is actually a standalone term limits proposal, and not just being used as window dressing for something partisan and destabilizing. So, while we need to be vigilant, there is no question it is healthy and important to have the national discussion return to term limits as an institutional reform that retains the intent of our founders while improving the functioning of our government. Let’s take advantage of this opportunity.
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Philip Blumel: Thanks for joining us for another episode of No Uncertain Terms. The term limits convention bills are moving through the state legislatures. This could be a breakthrough year for the term limits movement. To check on the status of the term limits convention resolution in your state, go to termlimits.com/takeaction. There you will see if it has been introduced and where it stands in the committee process on its way to the floor vote. If there’s action to take, you’ll see a “Take Action” button by your state. Click it. This will give you the opportunity to send a message to the most relevant legislators urging them to support the legislation. They have to know you are watching. That’s termlimits.com/takeaction. If your state has already passed the term limits convention resolution or the bill has not been introduced in your state, you can still help. Please consider making a contribution to US Term Limits. It is our aim to hit the reset button on the US Congress, and you can help. Go to termlimits.com/donate. Termlimits.com/donate. Thanks. We’ll be back next week.
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Speaker 8: USTL.