Supreme Court Term Limits: A Proposal

Tuesday, 28 April 2009

Article III, Section 1 of the U.S. Constitution states, in part, "The Judges, both of the supreme and of the inferior Courts, shall hold their Offices during good Behaviour...." This phrase, "during good behavior," has been interpreted as giving federal judges a lifelong appointment to the bench, barring impeachment. The reason for instituting a lifelong term is that the founders wanted to make sure that judges were not swayed by political influences and that legislators could not remove judges because they didn't like some of their decisions. The principle is good, but because longer life spans sometimes lead to judges, especially Supreme Court justices, becoming entrenched on the bench, unresponsive to the changing customs and desires of the American people, I propose the following constitutional amendment:

Justices of the United States Supreme Court shall serve terms of no more than eighteen years. Justices may be reappointed to their seats by the president, with the approval of the Senate. The Congress shall have power to enforce this article by appropriate legislation.

Congress should then pass a law that establishes a rotating schedule of eighteen years apiece for the nine Supreme Court seats, with the president empowered to fill one of the seats during the second and fourth years of each presidential term. If justices resign, retire, die, or are removed from office, the president would be directed to appoint a replacement--someone not currently on the court--to serve out the remainder of the term. Whether justices had served a complete or a partial term in office, they would be eligible for reappointment, at the discretion of the president and with the approval of the Senate.

The advantage of this system of appointing Supreme Court justices is that every president, elected by the people with certain expectations and philosophies of law and government, would have the opportunity to appoint at least two justices to the Supreme Court, or four if the president serves two terms in office. Such a system would avoid the inequities inherent in the current system, in which George H.W. Bush, who served as president for only four years, appointed two justices, whereas Presidents Clinton and George W. Bush, who served for eight years apiece, also appointed only two justices, and Jimmy Carter, who served for four years, appointed none. An eighteen year term is long enough to avoid political entanglements, but it is not an indefinite period, so justices who prove to be ineffectual or extremely ideological would not stay on the court forever. On the other hand, justices who distinguish themselves during their term in office would have the possibility of being reappointed.

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Progressive Theology