Ideas to restructure the Supreme Court, from term limits to adding justices

Today Chief Justice John Roberts remembered the late Justice Ruth Bader Ginsburg during a ceremony in the Great Hall of the Supreme Court: “Among the words that best describe Ruth: tough, brave, a fighter, a winner, but also thoughtful. Careful, compassionate, honest. When it came to opera, insightful, passionate. When it came to sports, clueless. Justice Ginsburg had many virtues of her own, but she also unavoidably promoted one particular one: humility in others.”

Tributes will continue to pour in over the next few days. She’ll lie in state in the Capitol on Friday. This Saturday, President Trump is expected to name his nominee to succeed RBG.

This is the second time in four years that there’s a vacancy on the high court during an election year. It’s sparking a big conversation about whether to reshape the Supreme Court — maybe implement term limits or add more justices.

KCRW talks about this with Danielle Allen, a professor and political theorist at Harvard.

KCRW: Do you think the Senate should fill this vacancy now or wait until after the election and after the inauguration?

Danielle Allen: “I think the morally right thing to do is to wait until after the election. Of course, the Republicans have the right to move it forward. But I don't think that is the ethically appropriate thing to do, given how close we are to the election.”

You would be okay with it during a lame duck session after the election, but before a new Congress is sworn in?

“I think that depends on the results of the election. That is to say, if the Republicans were to have a victory in the Senate and in the White House, then it would be reasonable for them to move forward quickly after the election. If on the other hand, power is transitioning from one to the other party, then I think they should withhold movement until the new administration comes in.”

Senate majority leader Mitch McConnell has indicated that he's going to proceed as quickly as possible. What do you anticipate happening in the next several weeks?

“Let me just throw out something that could happen, which would change the dynamics dramatically. It could happen as a matter of principle. Whether it will happen, I think, is a different question. … The Supreme Court could self decide that as a voluntary matter, the justices chose to adopt term limits for themselves, some 18-year term limits, for instance.

This idea that the Supreme Court will be better off with term limits is not a new one. It's not coming out of this political moment. Specifically, it's clear that the longevity of justices has transformed the meaning of life tenure, and given us a sort of politically unsustainable situation where the stakes of every judicial appointment are just too great. And that really polarizes and sharpens our politics. 

So in the ideal, we could take the pressure off of this decision, knowing that whatever appointment would come next would be an 18-year appointment rather than a life appointment. And that the justices would be now on a rotation, where every two years, we'd have a new appointment. Every presidential term, the president would do two appointments. Every president would have that two appointments per term, and we would have a sort of ongoing process of refreshing the court routinely.”

The key word in what you just said is voluntarily. Why would they voluntarily agree now to just serving 18 years?

“The country is in a real crisis. We have real breakdowns of governance. Our inability to respond to the pandemic effectively is sort of an example of the way in which our polarization and sort of deadlocks in Congress have made action impossible for the good of the country. 

And you can sort of go through the list. There's really low levels of trust in the federal government. Massive polarization of Americans against one another. On any number of indicators, our democracy is definitely at an inflection point, full of vulnerabilities. We need to restore norms for healthy, productive, democratic functioning and governance. 

And it's always been the case that the norms that have kept our democracy healthy have been achieved by leadership. One of the first and most important examples of that was George Washington's decision not to run for a third term. So there's no constitutional requirement at that time that the presidency be limited to two terms. But Washington wanted to set an example in a model. And he wanted to establish an ethos of the idea that there would be a transition and sharing of power and opportunity and so forth. And the same spirit that animated him could animate our justices.  They, above all people, are supposed to set the good of the country and the good of the Constitution above all else. And we do need a reset that would return the judiciary to its role as separate from our partisan politics.”

Have any of the current justices talked about term limits and signaled willingness to do this or consider it?

“I've not seen any signals from them. But the notion that there should be term limits for the Supreme Court is certainly circulating within the federal judiciary generally. So I have heard judges at other levels talk about and endorse this idea. So I am sure the justices have heard the idea. And I'm sure that in ways they are thinking about it. No, I haven't seen any direct signals from them.”

The Constitution says the justices and federal judges should have tenure for as long as they want to serve, right? So would it be constitutional to have term limits? 

“It’s fully constitutional. And all you have to do is remember that justices have chosen to retire, and it can't keep them from retiring. For example, Justice [David Hackett] Souter retired. So for the justices themselves to settle on a voluntary pattern of regular retirement is completely within the bounds of the Constitution.”

Would it be constitutional if Congress says you can only serve for 18 years?

“That is also constitutional. Yes. So federal legislation could achieve this. And the important detail there is that justices at the end of 18 years would transition to another role on the federal bench. So in other words, they would indeed have life tenure somewhere on the federal bench. But it needn't be in the Supreme Court specifically.”

What do you think of court packing — increasing the size of the court?

“I think that's a bad idea. I think that idea accepts the total politicization of the judiciary. And the goal should instead be to reduce the politicization of the judiciary, try to once more reset so the judiciary is not sucked into the politicization of decision making.”

Because if there's another administration and another Congress, they could change that back or change the numbering. 

“Yeah, exactly. I mean, the court packing view … accepts that a judicial appointment is simply a partisan appointment, and that's its only meaning. Whereas the entire point of the court is that it's supposed to rise above partisan politics. So in order to achieve that, we really have to turn judicial appointments into just a sort of matter of regular practice, where again every president gets the same number of appointments. So there are no partisan stakes in who's making which appointment when.”

But hasn't making court appointments become a partisan process?

“Absolutely. No, that's exactly right. … We're at a fork in the road where we have two choices. We can accept that it’s become fully partisan and double down on that by, for example, advocating court packing. Or we can try to … turn back to a place where the appointments to the judiciary were not a matter of partisan politics. So the proposal for term limits is trying to reset the norm so that we do not treat the judiciary as a matter of our partisan politics.”

Let's assume that the justices don't take up your idea, and we are stuck with the system for the foreseeable future. How does that affect the public's faith in the judiciary?

“I do think that we'll see a further erosion of competence in the judiciary, that we'll see the results of the politicization. And I think we'll then face the problem, as a country, of given how polarized we are, how partisan we are, how do we achieve corrections to our political institutions that go in the direction of depoliticization? So in other words, we'd be in a position where we are asking our hyperpolarized parties to figure out how to departisan things. … That's very hard. 

So we need things outside of the party system as real game changing actual leadership. So the Supreme Court justices in this instance, ordinary voters without propositions to bring in rank choice voting at local and state levels and for congressional elections — would be another way of bringing in sort of active leadership outside of the party structure to give us a sort of room to start depolarizing our politics.” 

— Written by Amy Ta, produced by Brian Hardzinski