by First Liberty Institute • 7 min read
The radical scheme to rig the U.S. Supreme Court in favor of the political Left continues. In addition to its brazen power grab via court packing, the party in power recently shifted its strategy. It introduced a bill to limit each Supreme Court justice’s tenure to 18 years and give the president the power to select a new justice every two years.
While this “reform” at first may appear benign, it’s nothing more than an attempt to cancel justices. It’s simply the Supreme Court Coup by a different name. It is packing—and effectively destroying—the Court, two years at a time.
As more Americans hear about this dangerous proposal, we need to make one thing clear: term limits for Supreme Court justices defy the letter and spirit of the Constitution.
Life tenure for Supreme Court justices has worked well for more than 230 years and is an essential component to ensure judicial independence. Judicial term limits would destroy one of the hallmark features built into our system of government.
To better understand this, we turn to Alexander Hamilton’s argument in Federalist No. 78, the prime defense of judicial tenure at the time of America’s Founding.
Hamilton writes that judicial independence “can certainly not be expected from judges who hold their offices by a temporary commission.” He described a judiciary that serves with life tenure under good behavior as “certainly one of the most valuable of the modern improvements in the practice of government.” According to Hamilton, we want judges serving with life tenure because this is “the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”
In other words, lifetime judgeships help ensure the law is administered in predictable and equal ways. Writing in National Review, Hillsdale College Professor Adam Carrington explained:
“People may not always think right in the short term. They may have prejudices against a person under trial or one seeking justice. To be sure, history is rife with examples of public pressure causing congressmen and presidents to cave when their principles told them better…With essentially life tenure, the justices—at least partially—are insulated from this pressure. They can discharge their duties and apply the law equally to popular and unpopular litigants.”
Federalist 78 also includes a warning: Taking away life tenure and allowing judges to be influenced by public pressure—what Hamilton refers to as the “occasional ill humors in the society”—would quickly upend the rule of law. Doing so would destabilize the separation of powers and possibly destroy our precious constitutional system.
Some on the political Left argue we should pass term limits legislation because Americans support it. Polls suggest most voters favor term limits for elected politicians. But Americans would be wise not to fall for the idea that term limits are good across the board. What works in legislative races does not work so well when applied to federal judges.
The Executive Branch is already limited to two terms for each president. And many have made the argument that the Legislative Branch might benefit from limiting the terms of senators and representatives. Professor Carrington makes the case:
“Congress writes the laws, and the executive signs or vetoes them. Because of this setup, the legislative and executive branches are and should be elected. They are and should, then, have a limit on each term of office before the elected representative must receive approval or rejection by the people.”
But Carrington goes on to argue that the function of the Judicial Branch is different:
“Yet as they take no part in making the law, the courts do not have the same relationship with it as members of the legislative branch (or at least they shouldn’t). Instead, they only apply the law as written…The concept of judicial review recognizes that we want the courts to respect our highest law when any other law conflicts with it.”
Unlike the other branches of government, Supreme Court justices are not elected by the people every two, four or six years. This was not an oversight. It was a deliberate decision. With life tenure, the Founders sought to ensure justices would focus foremost on interpreting the law. It was a way to encourage their fidelity to the Constitution and the rule of law, instead of worrying about personal gain or what’s best for them after they leave the Court. Carrington summarizes it well: “We’re not looking for a mirror in the Court—we are looking for an anchor, one that will keep us moored to our commitments to the law, constitutional or otherwise.”
Term limits for justices is also constitutionally suspect. The “good behavior” clause of Article III of the Constitution—stipulating that justices “hold their offices during good behavior”—is rightly understood from English common law as an appointment for life. The term says what it means and means what it says. The judge may serve so long as he or she does nothing impeachable.
When calling for judicial term limits, radicals are doing what they frequently do: playing fast and loose with the text of the Constitution. Virtually every time they do not like what the Constitution or one of the Court’s opinions says, they try to change the rules under the guise of court “reform.” Let’s not forget that a recent Heartland/Rasmussen poll found nearly half of Democrats (49%) believe the Constitution “should be mostly or completely rewritten.” Nearly one in four Democrats said the Constitution is “irrelevant,” according to another poll.
Whether it’s court packing or judicial term limits, the Supreme Court Coup is all about one political party bending the rules so it can ram through its radical agenda and gain more power.
Americans need to expose the lies and share the truth. More than 500,000 Americans have already joined the fight to defend the priceless heritage of the Supreme Court.
We need 1 MILLION patriots to join our coalition and send this critical message: NO to court packing, NO to judicial term limits and NO to the Supreme Court Coup.
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