The public, many law professors, and a lot of politicians seem to agree that the Supreme Court has too much power—but they'll have a hard time taking it away.
The Court's landmark rulings last month on Obamacare and same-sex marriage have stirred up a new round of criticism on the Right, where pundits and presidential candidates have called for an end to the justices' lifetime tenures.
Among the 2016 field, Sen. Ted Cruz is leading the charge. A congressional subcommittee Cruz chairs is holding a hearing Wednesday on "Supreme Court Activism and Possible Solutions," and Cruz has a preferred solution of his own: subjecting Supreme Court justices to retention elections every eight years.
"The problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself," Cruz wrote in a recent op-ed about his proposal. "The decisions that have deformed our constitutional order and have debased our culture are but symptoms of the disease of liberal judicial activism that has infected our judiciary."
Retention elections are controversial, but there is bipartisan support for some kind of limits on the Court's power. The nonpartisan advocacy group Fix the Court wants to see an 18-year term limit—a proposal that has picked up support from law professors, pundits, and legal experts on both sides of the ideological spectrum.
A Reuters poll this week found 66 percent support for Supreme Court term limits—including 66 percent of Democrats (even though the Court just delivered two big wins to the Left) and 74 percent of Republicans (even though a majority of the current justices were appointed by Republican presidents).
The Constitution grants lifetime tenure to Supreme Court justices, but critics say that's a relic of the days when most people lived only into their 50s. Supreme Court justices can now spend 40-some years on the bench, and it's up to them to know when it's time to retire.
Life tenure "is undemocratic by nature. It sounds more like an oligarchy or a feudal system," said Gabe Roth, the executive director of Fix the Court.
With 18-year term limits, a new vacancy would occur every two years, in theory guaranteeing each president two appointments per term. Right now, there's no telling how much any president will be able to shape the Court: The last four presidents have appointed two justices each, but given the ages of several current justices, the next president may be able to appoint more.
Lifetime tenure creates an incentive for older justices to stick around until a president from his or her party takes office, even if it might be time to retire, Roth said. And it also motivates presidents to pick young, ideological replacements—ensuring their impact on the Court will last as long as possible.
"There are plenty of 60-year-old, pragmatic judges out there who I'm sure would love to get the call up to the big leagues," he said.
But even though the issue polls well, no one has introduced a bill in Congress to impose term limits on the high court. Roth said Fix the Court is hoping to see such a proposal soon, but isn't working with any specific lawmakers to make it happen.
Moreover, taking away justices' lifetime tenure would require a constitutional amendment—no easy task in any Congress, but certainly not in a polarized Capitol that has struggled just to keep the lights on.
And term limits do have their critics: Some legal experts and law professors say the predictability of each vacancy would make the process more political, eroding the public's confidence in the Court's independence, and could make justices feel more loyalty to the party of the president who nominated them.
Several justices—notably, Anthony Kennedy and former Justice John Paul Stevens — have moderated as they've gotten older. Term limits would give Congress more control over the makeup of the Court, for better or worse.
And retention elections, Cruz's idea, enjoy significantly less consensus. Many supporters of Supreme Court term limits draw the line at elections, arguing that putting justices on the ballot will inevitably make them more political. If we want judges to do what they believe is right, rather than what's popular, we probably shouldn't make them campaign like politicians to keep their jobs, critics say.
"They're silly," Roth said of retention elections. "There's a reason that federal judges aren't elected."
This article is from the archive of our partner National Journal.
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