Op-Ed: It’s time for term limits on the Supreme Court

Op-Ed: It’s time for term limits on the Supreme Court

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In an op-ed for the National Review, national-affairs reporter John Fund argues that the lifetime tenure of Supreme Court justices no longer works in this day and age, and a step toward a solution is to create term limits by statute.

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The latest D.C. talk surrounding the Supreme Court is regarding Justice Ruth Bader Ginsburg's health, notes Fund, pointing to her long history of medical issues, including the recent health scare that sent Ginsburg to the hospital. "Luckily, doctors said it was only because of chills and fever, and she went home Sunday."

Her health issues have pushed liberals into "a state of semi-panic that Ginsburg will leave the court and give President Trump the chance to name a third Supreme Court justice and put a conservative stamp on the body for a generation."

The issue, according to Fund, is that Supreme Court justices' lifelong tenures are outdated. "Our Founding Fathers granted life tenure to Supreme Court justices to ensure their independence. But that’s a relic of a day when the average life expectancy was 38. Today, it is more than twice that," he writes. What's more, judges are left to decide when to leave the bench and they usually do so when they can ensure that their replacement will have similar views.

"This can result in judges staying past their “sell by” date either physically or mentally. Examples in the past 50 years include Justices William O. Douglas and Thurgood Marshall," Fund writes.

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A step toward a solution: "It’s time to put term limits on the Supreme Court," argues Fund. "Fix the Court has come up with a bipartisan proposal for 18-year term limits for the Supreme Court. A vacancy would come up every two years, meaning that every president would have at least two appointments in each term."

"The proposal could be enacted without amending the Constitution. Article III, Section 1 states that 'Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.' This has been interpreted to mean that Supreme Court justices have life tenure. But the Constitution is silent on what is meant by 'Offices.' Nothing is said about judges remaining at their original posts for life."

The public supports this idea as well, says Fund, citing a 2018 Morning Consult poll where more than 60% of the respondents said the Supreme Court Justices' term should be limited.

It wouldn't make confirmation battles any less contentious, says Fund. "In theory, an orderly changing of the guard on the Supreme Court should turn down the temperature of our current heated confirmation battles. The stakes, the theory goes, wouldn’t be as great if every senator knew that the justice they were voting on could serve a maximum of 18 years. But the real reason confirmations are such brutal battles is that the Supreme Court plays too large a role in our society, as more and more issues fall under the scope of the Court."

Conclusion: "Returning our courts to their proper place in our constitutional framework is a tall order, and not one to be solved by abandoning life tenure for Supreme Court justices. But the idea is a sensible step, enjoys support from both conservative and liberal legal scholars, and just might give Congress the opportunity to prove to the American people that it’s still capable of bipartisan action."

Read the full op-ed here.

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