We Need to Talk About Term Limits

It's back to school season, and this year 5 million children across Texas are going to be greeted by the 10 commandments in their classrooms.

Yes, you heard that right.

“Texas politicians passed a law requiring the 10 commandments in every public school classroom, forcing their religion on every kid in those schools.”

28 families in Texas supported by Americans United for Separation of Church and State are taking the fight to the Supreme Court. And they need you to amplify their voices before the Supreme Court gets a chance on this case. And we all know what the 5th Circuit did, obviously they let Texas get away with all of this.

They're going to go up, but we're going to fight to get them taken down.

That's Texas Public School Parent Ted Low, Ted and Rebecca Low are an interfaith couple, Ted is Jewish and Rebecca is Christian. And their kids are in Texas Public Schools.

“The story they tell in this video is moving, and we hope everyone hears and shares it.”

Look, there is a human cost of Christian nationalist policies, like these 10 commandments laws, and the decisions the Supreme Court hands down. Every child deserves access to public education, where they aren't subject to state and pose religion or religious instruction or coercion.

Public education is supposed to be open and available to everyone.

It's supposed to foster pluralism, not one specific religion. Visit AU.org/10C to learn more about this case and how you can help join the fight to protect Church State separation. We talked a little bit about this case on our regular episode last week, but there's so much more to be said and to learn about the people who are fighting back. Let's keep this place forward. It's no joke, but when I argue man argues against you, beautiful ladies like this, there's going to have a last word. She spoke not elegantly, but with unmistakable clarity, she said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet, or for my next."

Hello and welcome back to Strix scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Kate Shaw, your loan host for this edition of our special bonus series, "Hot Supreme Court Reform September." And for this installment of our series, I'm happy to be joined by returning guest Alicia Bannon, a senior director at the Brennan Center for Justice, where she leads the Seniors Judiciary Program and its Colberg Center on the U.S. Supreme Court. Alicia, welcome back to Strix scrutiny.

Thank you so much for having me. So we're really happy to have you, and as I just said, we are doing a series about Supreme Court Reform.

“People, I think, have a sense that something has gone deeply wrong with this Supreme Court. There was a Gallup poll in late July that had Supreme Court approval at 33% at or near all-time historic lows.”

So it is not just us who have the distinct impression that something is badly amiss. And we think it's important for conversations about the Supreme Court right now to focus on specific reforms to the Supreme Court. We will definitely continue on the show and in other venues to criticize the court in both general and specific terms. But in addition, we wanted to bring listeners and viewers a series of episodes that were really laser-focused on specific potential reforms to the court, and our topic for today is term limits.

Alicia, this is something that you've been thinking and writing about for quite some time, and I'm excited to get into it with you. But before we drill down on term limits, I want to take a step back and ask you to talk kind of generally about how you would characterize what is so wrong with the Supreme Court. Well, thank you so much for having me and for starting this conversation. I think it's a really important conversation to have. I think in a fundamental way the Supreme Court is failing in the role it is supposed to be playing in our democratic system.

This has been getting the role of Congress. We saw that this term in the collet decision where it eviscerated the voting rights act in the slaughter case where it eviscerated independent agencies. The court's also been grandizing its own role, so we see that in its conduct on the shadow docket where it has both kind of vertically when you look at it with the lower courts. Look at its relationship with the executive branch. It's both been behaving away that's unprecedented, and frankly inconsistent if you look at how it has engaged with the Trump administration as compared to previous administrations.

And we're just seeing more broadly a lack of respect for the traditional constraints things like precedent that are supposed to keep the court in its lane. And so I think across a whole bunch of arenas we just see a court that's not playing the function that we need its plan our democracy.

probably enough, but more broadly accepted. And so so then I think the question is, are we stuck with the Supreme Court that we have, which is fundamentally disempowering other important institutions in government, and as you said, asserting this enormous power for itself, in ways that really throttle the functioning of democracy.

“But are we stuck with it, or are there things that can be done? And I think the answer is emphatically, we are not stuck with this court. There is a lot that can be done. Some of it through just the ordinary process of legislation.”

Some of it will raise questions about sort of constitutional soundness and some of it will not. And so I think the different kinds of reform proposals raise different kinds of questions.

So I think there's value both in talking broadly about the Supreme Court and the need to fix what is broken, but also I think value, as I said earlier, in talking specifically about individual proposals. And so now let's turn to the individual proposal that you and your colleagues at the Brennan Center have spent quite a bit of time talking about and thinking about, and that is term limits for Supreme Court justices.

“So back in July, you had a couple of colleagues put together a 40-page memo titled constitutional analysis of proposals for statutory Supreme Court term limits.”

Now that is, I will say, a fairly academic sounding title. I am a law professor, I read things with titles like that all the time, but it sounds academic.

But I do think that you guys decided it was important to make clear what the objections to the ability of Congress to impose term limits look like and what the answers to those objections are and how making justices term limited actually does square with constitutional design if you do it right. So I do want to get into the constitutional weeds a little bit, but before that, can you talk a little bit about why in light of the problems that we have been talking about term limits for Supreme Court justices are something that we should or maybe even that we need to pursue.

So can you just give us the top line overview of the case for term limits?

“Absolutely. I think term limits, at least as we think about it, at the Brennan Center, is an important starting point for the conversation about court reform. It's really popular.”

Many polls over three quarters of Americans support term limits for Supreme Court justices, including a bipartisan majority. So I think one of the things that's really appealing about term limits is that it is a common sense solution. I think there's a basic principle that no one should have that much public power for life that that leads to a lack of accountability, a lack of connection with ordinary life and ordinary people that just not good for the function. Good for the functioning of our democracy. And if you think of at the starting point of justice starting there, we're looking at this stage of people who may be on the bench for 40 years, generational power in and I and so I think one component of term limits and one reason why I think it's so popular is that just basic notion of accountability.

Another dimension of term limits, and I'll step back, let me just explain the proposal in a little more detail, typically how term limits proposals work is that you have an 18 year term for justices. After that phase, the justices continue to be judges, they continue to hold their offices, but they move to a senior status where they're not hearing at least most of the cases that the court is hearing. In time, you introduce a regularized appointment process. So once the system gets going, you end up with a process where every two years the president will get a new appointment to the bench.

And so in a four year term, every president will get to and only two seats to fill regularizing the appointment process in that way, as I think another big benefit of term limits, because one of the problems that we're seeing today with the court is that we have a super majority that is completely unconnected. To our public values. If you look at how elections have gone over time, right now we should be seeing a court that is much closer as a roughly, you know, kind of 50 50 divide. If you look at who's one of presidential elections over the past several years and instead, we have this super majority.

And so another benefit of term limits is it more closely ties the court to our democracy to democratic values and let's it change over time as new presidents take power. Right, so a combination of strategic retirements and just the luck of the draw has meant that Republican presidents have been way over represented in the appointments that they have made in the last really half century. So for example, Barack Obama, two term president, so for eight years, made two appointments in those eight, I should say, had two justices confirmed in those eight years.

President Trump was able to make three appointments to the court.

And so those, you know, reflect enormously different influence on the trajectory of our law, even though Obama at the point that Trump finishes first term had served twice as long.

And so there's lots of other kind of unevenness and asymmetry that has tilted in favor of more appointments by and more confirmations of Republican appointees to the court. But that sort of a contingent fact of recent decades, but the larger point you're making, I think Alicia is that it is just fundamentally undemocratic for people for justices to serve for decades and to reflect the political will of a previous generation or two as opposed to of the president generation. And that's not to say that justices should serve for a year and turn over immediately, but this 18 year proposal kind of strikes a balance between kind of justices reflecting in channeling through the appointment process, the present popular will, but also a degree of stability and not excessive turnover on the court.

“So that I think is this sort of overarching philosophy of the proposal, now say a little bit more if you would about kind of how it would work.”

Absolutely, and I think just to add to that, one of the big advantages of a proposal like term limits is that it promotes a democratic accountability. It kind of addresses that legitimacy deficit that we're talking about, but in a way that still protects judicial independence. So you're not targeting judges and saying, well, we don't like you. We're going to boot you off the bench. It's a regularized process that applies equally to all justices, but allows it to be more closely tied to the democratic process in a way that still respects the court's role.

And so basically, as I was saying, if you have a nine person court in 18 year terms over time, you can end up with this regularized process with respect to how those terms work.

The proposals vary, but typically you have a dynamic where judges for the first 18 years it will look essentially as as it looks today. So justices will sit on the court here cases decide what cases to take up, etc. And then after that point, the justices transition to a senior status. So again, they still hold their office. They're not getting kicked off the bench, but their role is changing. And so depending on the proposal in some instances, the proposals say that those justices will hear cases on the lower court. They may continue to hear cases under the court's original jurisdiction. So those instances where the court is hearing cases as a trial court. They may step in when other justices need to recuse themselves. They may provide other sorts of administrative support to the court.

“But it's a different role. And I think one of the things that's really interesting, the lot of people don't know is that we actually already have a senior judge system that does apply even to Supreme Court justices.”

And that's been, in effect, for about a hundred years, we've had a senior judge system. And so the difference between that system and what we would have now is that the biggest difference is that instead of it being up to the judges to decide, okay, we're going to take this senior status.

The regular schedule that's set by Congress that says, at this phase, your role is going to change, and you will take on this new senior role in the court.

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Helping Planned Parenthood meet this moment and protect patients' access to care when and where matters most. If you believe all people should get healthcare, no matter their income, donate now at PlannedParenthood.org/defend. A couple of other logistical questions, and then I want to turn to the constitutional arguments.

First, so if once this is phased and completely say every president in like the first and third year of a single term gets to make an appointment,

do these proposals account for the possibility of a Senate refusal to confirm and sort of what does happen if the Senate doesn't confirm? Because the Senate, the ability to just kind of thwart the way this scheme is supposed to work. So there's certainly still room for Senate Gamesmanship, right? The Senate plays a role in our confirmation process. They have to confirm justices in order to take the bench, but I do think that this reform can be done in a way that reduces the likelihood of that kind of obstruction for few reasons.

“First off, I think there's since just concrete steps you could take to improve the confirmation process, creating a fast-track process that, at least, requires the Senate to actually do an upper-down vote on these nominees.”

So what we saw, for example, in American Garling context, was that they didn't even give him a hearing. They didn't even have to take a vote, so they were able to kind of avoid that accountability. So I think one thing you can do is you can set in place systems that would require the Senate to actually consider these nominees and vote on them. I also think you could potentially structure it in a way where the process would happen in the first two years of the president's term, so that you would have an intervening election, where again, there could be another opportunity if you're seeing that kind of obstruction for voters to voice objections and push for confirmation.

I think the last thing I'll say in one of the real advantages of term limits is that it does also lower the stakes of this whole process, because you're not looking at justices who are going to hold their offices, at least, or hold their current positions, have their full powers for 40 years. And not having a dynamic or because of strategic retirements, this may be your only bite at the apple to transform the court. And so I also think part of what we think could happen with term limits is there's somewhat of an opportunity to reset the process and turn the temperature down a little bit and shifting those incentives can help lead to a more functional confirmation process.

Okay, so now to the constitutional case, so unlike something like the size of the Supreme Court, which is clearly for Congress to decide and Congress has historically changed the size of the court, although it's been said at nine for 150 years, but clearly Congress by statute can create a 13 member 15 member 17 member court. I don't think there's any serious constitutional argument against that.

Congress has not done that before with respect to the Supreme Court.

“So what are the constitutional arguments against the viability of a proposal along the lines of the one you're describing, and then I want to get to the responses to those objections?”

Sure, I think the primary objection, the primary question that comes up around Supreme Court term limits is is it consistent with the constitution. Our article three of the constitution says that judges including justices hold their offices for good behavior.

That's language it use offices good behavior. And so the question is essentially is a term limits proposal like this consistent with article three of the constitution.

And I'll say when I first started looking into these issues, I was like, I was like, I don't know if this is this possible, and I had to really dig in read, read case law read the history and really really look what persuaded me was really appreciating the both if you look at article three of the constitution. There's not so much in there. It really leaves almost everything in terms of the structure and design of the Supreme Court and the judiciary branch in general to Congress. And if you look over time at how Congress has exercised those powers, really a lot of the components of a term limits proposal have actually been exercised by Congress over time.

And so I think when you put that together and when you recognize that I think the design of the constitution particularly article three was done in a way very, very clearly I think to let Congress figure out the best way to design this system to design a court that can play the role that it needs to play in our system and recognize that those needs may change over time.

“I think there's a very strong argument that this is within Congress's power.”

Well, and you say more about that. So what even if Congress hasn't done exactly this what you're describing what has Congress done. I like this notion that basically we have been under this mistake and impression that this kind of good behavior language in the constitution has this totemic significance and the thing it has to mean is service for life justices have to decide when to retire absolutely or serve until they die and like that's the nature of the constitution's design. And really that's I think putting way too much weight on those two words good behavior, but also under appreciating how active Congress has been in regulating generally speaking around the Supreme Court.

So what are some examples of things Congress has done that you think supply persuasive authority for the constitutionality of a proposal like this one. One clear example is our whole system of senior judges and the U.S. Supreme Court has considered the constitutionality of our senior judge system. So the way it works is that now judges both at the Supreme Court level and at the lower court level can choose to take a senior status where they have reduced duties. But and the Supreme Court recognize this they still hold their office so if you look again at the actual text of the constitution this they are senior judges are continuing to hold their office during good behavior.

And so what a Supreme Court term limits proposal does is essentially a version of that senior judge system that we already have in effect. Now the difference of course is that the justices aren't choosing when to take that senior status. That's not actually the text of the constitution it doesn't say you get to hold office during good behavior and have the office defined to be whatever you want whatever the justice wants it to be. The question is are you holding your office or are you not holding your office and we've long recognized that senior judges and senior justices do continue to hold their office.

“I think that is all that is required for compliance with with that provision of the of the constitution and I'll say that isn't just something that's been written in a statute put on a shelf and nobody's actually.”

Use it in process practice just many many justices have actually taken that senior status and have been hearing cases on lower courts thousands of cases on lower courts. If they weren't actually holding an office in that senior status that would have been illegal there would have had no basis to be hearing those cases as judges. Thank you can actually see a long history of practice and that whole design of the senior judge system that sets up the components of what a term limits proposal would be.

The other component I would lift up is just the long history of circuit writing which we had in the first part of our nation's history where Supreme Court justices were required to ride circuit.

We spent a large portion of their time hearing cases on the lower courts and again there was a this one up to Supreme Court is it can you can you require justices to hear lower court cases if that was if their justices not lower court judges. And the court said yes that we have had this long tradition up till now and that that is within congress's power to do and I'll note the justices hated doing it.

I think very persuasive examples and I do think that in a sane world this history of legislation Supreme Court acquiescence in an affirmative blessing of these modes of regulation of the the courts and the Supreme Court would. Essentially resolve the question of the constitutionality of an 18 year term level proposal and yet I do think that there would be a serious danger of this profoundly imperial court striking this sort of term limits legislation down because. It would feel like an existential threat to their authority and as we have seen this is not a court that is going to lightly part with authority right it's doing the opposite so I guess how do you think about that possibility and maybe that's a good segue into something that you I think referenced earlier which is.

Maybe cannot be a stand alone reform or maybe is not optimal as a stand alone reform I guess how do you think about term limits as something that could be or should be pursued in tandem with court expansion right like there is certainly an argument that this Supreme Court cannot be trusted to.

“Fairly read the constitutionally a fairly assess the constitutionality of a proposal like this and so you need to do court expansion in conjunction with term limits the two could be done together so that you have a Supreme Court that actually might.”

Provide a fair constitutional reading of a proposal like this as opposed to leaving it to this Supreme Court that pathologies of which we have just described so so sort of I guess what do you think about both of those questions. There's the lots of impact there I guess one thing I wanted to just say first is just one other component of the constitutional argument that I think is compelling is there several of these proposals that particularly relate to. This Supreme Court's appellate jurisdiction so article three of the constitution provides that there's a limited number of cases where the court has original jurisdiction where it hears cases as a trial court and all the rest they hear as an appellate court and the the constitution says that those the courts appellate jurisdiction is subject to the regulation of Congress.

And so that is I think just another textual basis and again Congress has used extensively over time it's power to regulate the court's jurisdiction so just wanted to add that as another way of thinking about the the constitutional basis. Don't you remember San Melito insisting that there's not one word in the constitution that gives Congress the power to regulate the Supreme Court not one of this in this one of these Wall Street Journal interviews I think anyway so so San Melito at least disagrees San Melito and I have a lot a lot we don't agree on these days.

“I guess so your your bigger question I think is it is obviously a really important one what would this court do with it.”

I think I want to push back a little bit at just the assumption that this that this is you know maybe not a word fight worth having or that this is a foregone conclusion we have a lot of.

former judges law professors who have made I think very powerful forceful arguments that this is within Congress's power I think the world that we would live in where you have a wildly popular reform like this that passes Congress and that is very explicitly about. Constraining the court in a way that is respecting judicial independence in this way I actually think will be will be hard it will put the court in a hard position and so and and I think it's a fight worth having I think it's important to put the court in that position.

I also think you could there ways that the reform could potentially be structured with several ability provisions that might for example like you could imagine different ways of structuring it that could have additional provisions. In fact you eventually even some sort of expansionary position provisions take effect if term limits are struck down so I think there's a lot of ways you could think about how to structure that statute that would make it hard for the court to say no especially given the broad bipartisan support that people have for what really is such a common sense reform and so.

“The first thing I'll say is that I think there is a much stronger constitutional argument even for this court than a lot of people might think on first instance.”

But obviously if the if the court were to strike it down I think that would very much change our whole conversation about court reform in a lot of ways I think it could potentially jump start conversations about constitutional amendments I also think it would jump start other conversations about what other sorts of reforms should be on the table. But what what again one of the things that I think is so compelling about term limits in particular is that it is so popular this is a reform that that everybody wants like but 75% of people don't even agree about like donkeys and rainbows right like to have something that has that level of support I think is a really powerful grounding starting point for organizing people around this idea that the Supreme Court.

Yes totally a couple things one I definitely wasn't suggesting it's not a fight worth having I think it's absolutely a fight worth having and I do think the constitutional arguments and I sort of agree with you that I. Years ago when I sort of came to think really seriously about Supreme Court reform was more skeptical about.

Term limits by statute now you've always been able to amend the constitution to impose term limits but the question is whether you can do it by just statute.

“And I have totally come around and I think that proposals along the lines of the ones that we are discussing are squarely constitutional and the arguments against them will not frivolous or weak.”

And so it wasn't suggesting otherwise I just don't trust the Supreme Court to you know accept even obviously winning constitutional arguments especially if they have skin in the game institutionally and so I think that it is important just to game out. What does happen if they decide to do something pretty flawless and strike down these term limits even though squarely constitutional even though with wide bipartisan support and that could pass Congress.

And so and I think that those answers are really compelling and just to maybe unpack you said something about you could get creative in terms of how you design this and maybe have a.

“Some severability and expansionary sort of default or something and I think that what you're referencing there is some kind of design that says.”

Well we're going to add justice as every other year in the first two years of a presidential term regardless if you Supreme Court decide to strike down the term limits part of it well then the court will just keep growing. And that's you know we'll have the new additions every you know two every four years however we distribute them and if if the limits if you decide the limits don't fly then you're just going to have a lot of new colleagues that you're going to have to figure out how to how to play in the sandbox with.

So that that would be I think one possibility but I also do think that you're right about the galvanizing effect that striking down something like this would have in that it would potentially spur even more.

And then even radical reforms to the Supreme Court potentially including constitutional amendment and so I think that all of those are reasons to try even.

“If there is of course some chance you have to be clear I'd about that this Supreme Court might do everything in its power to resist those kinds of changes to the court as an institution.”

When you said it took you you know sometime to kind of think through and come around on these proposals and I and I said I have had something of a similar journey I actually do think that. That's as institutionalists and I would count myself as one I'm not sure if you think of yourself that way Alicia but my assumption is that you do at least somewhat. But but either way I guess I think that at this point Supreme Court reform should be able to bring together people who want to defend our institutions and those who think they are fundamentally broken and maybe want to tear them down like I actually do think this is an issue that should unite institutionalists and anti institutionalists which is to say like if you.

To test this Supreme Court you know you might not need convincing that the court needs reforming but we should figure out the specifics but I actually think also if you are a fan of the Supreme Court and think it has an important role to play in our democracy you should also support Supreme Court reform because as you said at the outset of Alicia it is not functioning as intended in our democracy right now and reform is the way to restore it to that proper role and so I do think we are at this moment where this is not just something that should be.

The difference of or pursued by just people who are critics of our institutions I think defenders of our institution should also be on board with Supreme Court reform. Okay so end rant but I'll I'll give you maybe the kind of last word either on that or anything on the topic that the topics that we've been can missing today. Well I think you you have it exactly right and I'll go back to to something you mentioned at the outset which is that public confidence in this in the court has plummeted. I think this should be something that is deeply concerning to anybody who cares about the court as as an institution and I think stepping back why should we think about Supreme Court reform I think it is something that it goes to the fact that we actually do need.

functioning Supreme Court in our democracy we need an institution that's going to protect rights that will be a bulwark against a assault on our democratic system it's important to have a court that's playing that role and so I think the question is how can we make structural changes that will get us to the court that we need for our democracy and again I think Supreme Court term limits is. We're trying to transform it over form that gets at key dysfunction in the role that the court is currently playing in our system and it is something that can really galvanize the public because I think it's again everybody understands that it's not it's not good in a democratic system for anybody to be holding that much power for life.

So that's one of the reasons why we've been really drawn at the Brennan Center and why my co-authors Steve Spalding and Elzartata and I wrote this paper really digging into the legal issues around Supreme Court term limits.

Thank you so much for having me.

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