Why the Public Is Wrong on Supreme Court Term Limits

Article Placeholder Image
By Casey C. Sullivan, Esq. on July 21, 2015 2:54 PM

Most Americans want term limits for Supreme Court Justices, according to a recent poll by Reuters and Ipsos. Two thirds of the country supports imposing term limits on the Justices, which would require a constitutional amendment. Support for the limits is bipartisan, with just a slim 17 percent wanting to maintain the status quo. Presumably, that 17 percent consists entirely of America's lawyers.

Of course, the public is wrong and the lawyers are right. Here's why.

The Democratic Impulse ... Misapplied

The poll shows that Americans have a "broad understanding of the Court," according to Reuters, but we're skeptical. Only 68 percent of respondents knew that Justices were appointed; only 60 percent knew those appointments were for life. That's not exactly a passing score.

Whether you're a Court expert or not, however, there's a certain logic behind wanting to change the High Court. Justices are appointed? For life? That doesn't seem very democratic! But of course, that's partially the point.

The Supreme Court is relatively insulated from the shifting winds of politics. Sure, the Justices need to get nominated and confirmed by the Senate, but once they're on the bench, they are no longer beholden to the legislative and executive branches, which is essential to their independence and integrity. Of course, Justices can always be removed for lack of "good behavior," though the only time this was ever attempted was with Justice Samuel Chase -- who Congress impeached for purely political and partisan reasons.

The independence of the judiciary can sometimes put the Court at odds with the political consensus. Take, for example, the Court's obstinate rejection of the New Deal -- not exactly a high point in its history. Yet, the ability of the Supreme Court to stand against the majority is especially important when it comes to protecting the rights of unpopular minorities or keeping an ambitious legislature in check.

Term Limits Won't Solve the Problem

Despite popular support, term limits won't make the Court more appetizing to the public. Writing in The Atlantic last year, Norm Ornstein, a conservative scholar, argued that term limits were the solution to a Court that had become "too politicized" and polarized. Now, forget for a minute Ornstein's model of a great Court, the Warren Court, was only slightly less divided than today's. Forget that the Court has not grown nearly as partisan or polarized as many think. Let's pretend it has. Would term limits solve that?

Simply look at those other great term-based institutions, the Congress and the Presidency, for a clue. Those are hardly models of neutrality and cooperation. In fact, we can't think of a single public position, from NLRB posts to city counsel seats, that has ever been made less political through the imposition of term limits.

Related Resources: