On July 26, Rep. Hank Johnson, D-Ga., introduced a bill to end life tenure for Supreme Court Justices. The “Supreme Court Tenure Establishment and Retirement Modernization (TERM) Act” proposes to end life tenure and create a system where justices actively serve for 18 years before taking senior status. Sen. Sheldon Whitehouse, D-R.I., is introducing the bill in the Senate. This is a clear partisan political reaction to the court’s release of a series of excellent decisions this term and contains serious constitutional and logical problems.
Article III, Section 1 of the U.S. Constitution vests all judicial power in the courts and states that “[t]he Judges … shall hold their Offices during good Behaviour.” This has long been interpreted to give life tenure to Supreme Court justices, as long as they are not impeached due to lack of “good Behaviour.”
How, then, does Congress think it can get away with passing clearly unconstitutional legislation? The Democrats who have proposed this legislation have, of course, thought about this a bit. The TERM Act requires a justice to assume senior status after 18 years. At this time, he will retain his title as a “Senior Justice” and will continue to be compensated, hear cases on lower courts, and serve on the Supreme Court should a vacancy or conflict with a current acting justice arise.
The bill’s sponsors believe that this solves the constitutional problem. If justices are forced to retire after 18 years but they can maintain their office as a senior justice and continue getting paid, then the letter of the Constitution is fulfilled, they claim.
It is questionable that the constitutional requirement that a justice “shall hold [his] Office” is fulfilled by forcing a justice into partial retirement. Justice David Souter, who retired from the Supreme Court in 2009, still hears cases on the First Circuit Court of Appeals. Nobody would say that he still serves as an associate justice of the Supreme Court.
This method of forced semi-retirement seems to be fiction so leftist politicians can get around the language of Article III. Forcing judges into retirement to pursue fulfilling constitutional language on a technicality is dubious at best.
One bad faith claim, in particular, made in Johnson’s introduction of the TERM Act needs to be addressed. Johnson claims that the legitimacy of the Supreme Court is in question because “[f]ive of the six conservative justices on the bench were appointed by presidents who lost the popular vote, and they are now racing to impose their out-of-touch agenda on the American people, who do not want it.”
Johnson’s fear of a “radical, unrestrained majority” on the Supreme Court and its “out of touch agenda” has been a concern of the left since the Supreme Court has allegedly become more conservative in recent years.
The liberal case for Supreme Court term limits is based on a flawed and dangerous desire to usher in a “regular turnover on [the] court and the renewal of democratic consent and input into the process of judicial review.” This “renewal of democratic consent” may sound nice, but it is clearly contrary to the American founders’ intent and the judiciary’s very purpose.
In Federalist 78, Alexander Hamilton wrote about the importance of having independent Article III judges. Hamilton said, “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”
The democratic elements of government, particularly the legislature, which changes both its members and the laws quite quickly, tend to innovate, move quickly with the latest trend, and oppress opposition. This is precisely the reason federal judges were constitutionally granted life tenure.
The call for “renewal of democratic consent and input into the process of judicial review” is a dangerous attack on the separation of powers, on checks and balances. There is intentionally not supposed to be democratic input into how the judiciary functions. The judges’ jobs are to interpret the law, without regard for the latest trend among voters and popular opinion. Continuing to politicize the judiciary, to demand that the Supreme Court be more “in touch” and “with the times” is contrary to the very purpose of an independent judiciary. Judges need to be free from such popular constraints so they can do their job.
Conservatives should oppose the TERM Act because it is unconstitutional and terrible policy. Conservatives must also be careful not to adopt such causes only when they are politically expedient. We ought to respect American traditions and institutions, understand their logic, and make changes only when necessary. The correct constitutional action to remove problematic judges is impeachment, not the imposition of term limits.
The Supreme Court must remain free from the changing tides of popular opinion.
Frank DeVito is an attorney living in eastern Pennsylvania with his wife and three young children. His work has previously been published in The American Conservative, the Quinnipiac Law Review and the Penn State Online Law Review.
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