Skip to content
Search

Latest Stories

Top Stories

Single 18-year terms for justices? Not so fast.

LaRue writes at Structure Matters. He is former deputy director of the Eisenhower Institute and of the American Society of International Law.


As the Presidential Commission on the Supreme Court of the United States conducts its "analysis of the principal arguments ... for and against Supreme Court reform," one proposal gaining attention would limit each justice to a single, 18-year term. Designed to standardize departures and reduce confirmation partisanship, the idea offers considerable benefits. But one flaw is likely fatal.

The advocates' case is otherwise strong, as recounted by professors Paul Collins and Artemus Ward, or detailed in professor Akhil Amar's testimony before the commission on July 20. With fixed appointments every two years (in odd years), each president would nominate two justices per term. A smoother, less volatile confirmation process would not be upended by any one nomination. The experience of single-term presidents like Jimmy Carter, who appointed zero justices, and Donald Trump, who appointed three, would not be replicated.

Other benefits include: disincentivizing the now-common practice of presidents appointing less-experienced, young justices so they serve longer with greater personal impact; preventing justices from timing their departure to occur during terms of like-minded presidents; and lessening the possibility of declining performance as elder justices age.

Sign up for The Fulcrum newsletter

Such a schedule is admirably clean and impactful. It has been endorsed by Our Common Purpose, the highly regarded project of the American Academy of Arts & Sciences, which includes the proposal in its 31 recommendations to improve U.S. elections and civic life. Why doubt its efficacy? Because of the hyperpartisanship everyone wants curtailed.

The plan's flaw is revealed when Collins and Ward claim that fixed terms "would help insulate the court from becoming a campaign issue because vacancies would no longer arise during election years." Amar makes the same mistake when he says that scheduling the appointments "in odd years further reduces the political temperature of Court confirmation battles by staging these battles in nonelection years." Such "years" may have relevance when a Senate majority leader decides to schedule confirmations (in 2020) or not (in 2016), but they were abandoned decades ago when describing presidential campaign timeframes.

This mistaken sense of timing is critical, as the fixed schedule's certainty also would influence what happens before every nomination during every election cycle. New, pre-confirmation politics would focus on the departing justices; for each presidential race, the two justices whom the winner would replace would be known — long before the presidential contenders themselves would be known. To varying degrees, each Senate campaign also would contend with this definitive departure information. Not only would polarization unrelated to confirmation rise, potentially dramatically, but it also would become perpetual. Hyperpartisanship would merely shift from one arena — the confirmation process — to another — the permanent campaign.

In addition to each party and each candidate being able to use or abuse such concrete knowledge, consider the response of advocacy groups on all sides of any hot-button issue. Fueled by independent funding and media attention, special interests would take early and loud advantage of knowing the justices to be replaced.

In contrast then, the current selection method may remain preferable. Randomly determined turnover, either by a justice's death in office or self-selected retirement, means that pre-nomination partisanship is speculative, hard to sustain and short-lived (i.e., political but not hyperpartisan).

Two additional points merit attention. First, contextually, it bears noting that fixed terms likely would not alter the general political posture of the Court. Had non-renewable 18-year terms been used since the Eisenhower administration, 12 departures from the court would have occurred earlier, so a different president would have appointed the successors. In eight of these 12 cases, a president from the same party would have made the nominations; the other party's president would have done so in the remaining four cases, but those were evenly split. Such a 70-year record may not be repeated, but it signals minimal potential impact on the partisan roots of the court's makeup.

Secondly, how to create such terms is a subordinate but still consequential issue. Some scholars, like Collins, Ward and Vicki Jackson (who also testified before the commission), anticipate that doing so would require a constitutional amendment. Others (e.g., Amar and OCP's leaders) think they can avoid the steep amendment hurdle by changing the interpretation of lifetime service ("during good Behaviour;" Article III, Section 1) to include some version of emeritus service after completion of an 18-year stint on the court. They further argue that this change could be enacted through federal legislation. Both assertions remain unresolved, and I join those who doubt their prospects; for example, overcoming the conclusion of a recent Congressional Research Service report — "the Framers appear to have understood the Good Behavior Clause to preclude congressional modifications to judicial tenure" – would be a tall order.

The question then becomes twofold: Do the benefits of standardized departures and lessened confirmation politics outweigh the costs of definitive, pre-nomination departure information being weaponized in the permanent campaign, and do they retain enough support from their proponents if they require constitutional amendment? On the former, I reluctantly conclude "no," rendering the latter question moot.

We still can and should deal with political polarization, but on the ground floors of our political structure rather than in its highest court of last resort. The other 30 recommendations in the OCP report offer great starting points, with such proposals as making Election Day a holiday, expanding the use of ranked-choice voting, establishing independent redistricting commissions and adding voting to jury duty as a requirement of citizenship.

The commission's report is due in November. The extent to which it will propose actionable steps is unclear. Regardless, fixed terms for the justices should be neither favorably reviewed nor recommended.

Read More

People voting
LPETTET/Getty Images

Attention must be paid to working and retired Americans

There is no question that the Democratic Party has lost touch with the working class. Candidates actually rarely use the phrase "working class," while they never stop saying "middle class." Working class, to most Democrats, feels like a pejorative term. Everyone, after all, wants to rise up to the middle class, which makes up 50 percent of the country.

The 35 percent of the public who fit into the working class, in Rodney Dangerfield's terms, don't get no respect.

Keep ReadingShow less
USA China trade war and American tariffs as opposing cargo freight containers in conflict as an economic and diplomatic dispute over import and exports concept as a 3D illustration.
wildpixel/Getty Images

Are Trump's tariffs good for the economy or will they increase prices?

As President-elect Donald Trump prepares to return to the Oval Office, there is much talk about tariffs as the foundation for his economic policy. Trump himself says he’s “a Tariff Man,” and in fact implemented tariffs on a number of countries in his first term. But what are tariffs exactly, and how do they work? What are the pros and cons?

There’s a lot at stake, and like many things “economic,” it’s kind of complicated. So let’s break it down.

Keep ReadingShow less
Man stepping on ripped poster

A man treads on a picture of Syria's ousted president, Bashar al-Assad, as people enter his residence in Damascus on Dec. 8.

Omar Haj Kadour/AFP via Getty Images

With Assad out, this is what we must do to help save Syria

This was a long day coming, and frankly one I never thought I’d see.

Thirteen years ago, Syria’s Bashar Assad unleashed a reign of unmitigated terror on his own people, in response to protests of his inhumane Ba’athist government.

Keep ReadingShow less
Men and a boy walking through a hallway

Vivek Ramaswamy and Elon Musk, with his son X, depart the Capitol on Dec. 5.

Craig Hudson for The Washington Post via Getty Images

Will DOGE promote efficiency for its own sake?

This is the first entry in a series on the Department of Government Efficiency, an advisory board created by President-elect Donald Trump to recommend cuts in government spending and regulations. DOGE, which is spearheaded by Elon Musk and Vivek Ramaswamy, has generated quite a bit of discussion in recent weeks.

The goal of making government efficient is certainly an enviable one indeed. However, the potential for personal biases or political agendas to interfere with the process must be monitored.

As DOGE suggests cuts to wasteful spending and ways to streamline government operations, potentially saving billions of dollars, The Fulcrum will focus on the pros and cons.

We will not shy away from DOGE’s most controversial proposals and will call attention to dangerous thinking that threatens our democracy when we see it. However, in doing so, we are committing to not employing accusations, innuendos or misinformation. We will advocate for intellectual honesty to inform and persuade effectively.

The new Department of Government Efficiency, an advisory board to be headed by Elon Musk and Vivek Ramaswamy, is designed to cut resources and avoid waste — indeed to save money. Few can argue this isn't a laudable goal as most Americans have experienced the inefficiencies and waste of various government agencies.

Sign up for The Fulcrum newsletter

Keep ReadingShow less