“The only responsible choice for Justice Breyer is to immediately announce his retirement,” contends Brian Fallon, executive director of Demand Justice, “so President Biden can quickly nominate the first-ever Black woman Supreme Court justice.”
Not merely pushing identity politics, Fallon is warning of the risk of “Democrats losing control of the Senate before a Biden nominee can be confirmed.”
No retirement announcement yet from 82-year-old Stephen Breyer, who recently advised Democrats against court-packing. Having served on the High Court for the last 27 years, he is the oldest justice and second-longest serving.*
“Democrats’ fears about Breyer come after [Justice Ruth Bader] Ginsburg refused to heed calls from liberals and former President Barack Obama to step down,” notes Forbes, “which ultimately resulted in Trump appointing conservative-leaning Justice Amy Coney Barrett to succeed her when Ginsburg died in September.”
It is painfully obvious: life terms at the highest court have produced gamesmanship — not on the Court, mind you, but in Congress, that cesspool of even longer tenure where our supposed representatives do anything but.
And why allow personal circumstances or the vagaries of death to decide such potentially critical matters in our republic?
To prevent politicians from politicizing the Supreme Court of the United States, put the number of justices (9) into the Constitution and term-limit those justices to a single 18-year term. No renomination. With nine justices, cycle one out and a new one in every two years.
There are other matters to consider and settle. Do so in constitutional form, so the whole country is engaged and the Court is hereafter more secure and independent of that branch most in need of term limits.
This is Common Sense. I’m Paul Jacob.
* On the all-time Supreme Court longevity list, Breyer thus lags ten places behind Justice Clarence Thomas, who has served 10,767 days on the court and currently ranks 16th.
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4 replies on “Term Limits or Death?”
In the case of officials who otherwise would not run for re-election, term limits can have the perverse effect of making the office more politicized. Our calculations as voters, and the calculations of Electors would be different if we knew that a Justice could not serve beyond the election to follow whichever were upcoming. With fixed terms for Justices of the Supreme Court, we would be much closer to their being deliberately chosen by the Electoral College, especially if Presidential candidates are lured or pressured into announcing whom they would nominate.
In 2012 and in 2014, we did not know that Scalia would not be on the Court in 2017. Voters such as I expected in 2020 that Breyer and perhaps Sotomayor would be replaced during what was then the upcoming Presidential term; but we didn’t (and don’t) know as much. In fact, until she died, my own expectation was that Justice Ginsburg had a significant chance of surviving the first term of the Trump Administration.
I don’t know why Justice Ginsburg did not resign during the Obama Administration. I suspect that it was a combination of wanting to continue to write decisions and, later, a reluctance to be replaced by a Justice whom the Republican-controlled Senate would accept. But she may have had the more honorable objective of not letting her decision as to when to resign be political. Taking the decision from her, with term limits, would have prevented her from making a politicized decision, but only at the cost of increasing the already great politicization of deciding her replacement.
If Breyer does not resign his position, I’m fairly sure that it will be because he doesn’t want his decision to be political.
I’m not pushing Breyer to resign. Let him make that decision by his own calculus. As I mentioned in the piece, the justices have not been guilty of politicizing the process so much as Congress and the president.
Of course, filling such an important position in this political system is not going to be devoid of politics no matter how we might try. My goal is to remove the Court from as much uncertainty and congressional control as possible. I think a set timeline offers benefits there which outweigh any negatives.
Putting the number of justices in the Constitution and perhaps setting other rules ‘in stone’ so to speak by constitutionalizing them is even more critical.
I realized that you weren’t advocating that Breyer resign, and I think the idea of having the number of Justices be fixed by the Constitution (though there might be a one-last-time attempt to pack the Court by way of such an Amendment).
But I think that term limits (or age limits) would produce a still more politicized Court.
“I like the idea of having the number of Justices be fixed by the Constitution”