Conservatives have long regarded the U.S. Supreme Court as an essential check on the excesses of overeager government. From landmark decisions that restored First Amendment protections against activists who sought to limit freedom to ones that prevented businesses large and small from facing undue regulations, the high court has for decades been a centerpiece of the conservative movement’s efforts to cement constitutional republicanism as a governing principle.
Yet, the court has also shown itself to be opaque and unaccountable, with certain members making decisions more based on outmoded and outdated political agendas than on actual interpretation of the Constitution.
With gridlock and constant bickering on either end of Pennsylvania Avenue, the court is increasingly making law on an array of topics of critical importance to ordinary Americans’ lives all while they operate in a functional ivory tower, disconnected from those they govern, empowered to carry on as they do with zero checks and balances for as long as they want.
The rising lack of trust in the Supreme Court is palpable, articulated by conservatives and liberals alike. In fact, just 10 percent of Americans expect the justices will rule objectively in the Obamacare case this month, instead relying on their own personal opinions to guide them.
The time has come for a shift for Supreme Court justices – away from a guaranteed job for life, irrespective of old age or infirmity, and towards a system where justices serve for a set term of office.
In the 2016 presidential race, four Republican candidates have already declared their support for instituting term limits for Supreme Court justices. Former Texas Gov. Rick Perry, who recently announced his second run for the presidency, first championed the idea in 2012 as part of an overall government reform platform. More recently, the idea has been seized on former Arkansas Gov. Mike Huckabee, Sen. Rand Paul of Kentucky and retired neurosurgeon Dr. Ben Carson.
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Conservative scholars from the American Enterprise Institute and Steven Calabresi, co-founder of the Federalist Society, have also endorsed the move. The push for term limits is even echoed on conservative talk radio, where stalwarts like Mark Levin have declared that justices shouldn’t serve for life “because the American people deserve better” than the current system.
For his part, Calabresi, a Northwestern Law professor who clerked for Justice Antonin Scalia, advocates a specific proposal in which the justices would serve no longer than 18 years, with regular vacancies established every two years, so each presidential term would yield two new justices. That would make confirmation hearings much less partisan and acrimonious.
An 18-year limit would give jurists more than enough time to learn the job and would provide the independence they need while avoiding the problems of lifetime tenure – including the “gaming” of their retirements.
In his research, Calabresi points out that the average Supreme Court tenure has jumped from under 15 years before 1970 to more than 26 years today, with the most recent justice to retire, John Paul Stevens, having served nearly 35 years on the court. So even the most ardent defenders of extended, uninterrupted tenures at the high court should be satisfied with 18 long years on the bench.
The stakes have rarely been higher for the justices to put the rule of law above partisan politics, with the high court preparing to hand down decisions in major same-sex marriage, Obamacare and death penalty cases this month. And the American people are frustrated with the state of affairs there. Having unlimited, unstructured terms encourages justices to put their own political views over the need to stay independent from partisan politics.
It’s important for the American public to remember that justices are not infallible, devoid of political agendas or immune to the effects of ill-health or aging. Plus, they wield extraordinary power.
It’s time to seriously consider ending life tenure at the Supreme Court to ensure that appropriate checks on power still exist in our government.
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