Erwin Chemerinsky
Fri, December 23, 2022
The U.S. Supreme Court faces a serious legitimacy crisis.
A Gallup Poll last year reported that the high court had received its lowest approval ratings in history, with only 40% of respondents approving of its performance and 53% disapproving. According to a Marquette University poll conducted in July, 38% approved of the court and 61% disapproved.
This year has seen some of the justices, including Samuel Alito and Elena Kagan, publicly sniping at each other about whether the court’s legitimacy is in jeopardy.
The crisis of trust is due partly to recent decisions ending abortion rights and aggressively expanding gun rights. But the political manipulation of theSupreme Court appointment process has also taken a toll.
During his 2020 presidential campaign, Joe Biden was asked about national distrust of the Supreme Court. His answer was the one leaders often give when they want to duck an issue: He said he would create a committee to study the matter.
Opinion
Once elected, Biden did exactly this, creating a 34-person committee. Being so large and ideologically diverse, the committee was unlikely to agree on any major recommendations. The resulting report, released a year ago, received little media attention.
But the issue of the court’s legitimacy, as well as the need for action to address it, is more urgent than ever. There are many reforms to consider, but one seems particularly important: term limits for the justices.
I have been arguing against the justices’ current lifetime terms for many years. I believe they should serve 18-year, nonrenewable terms.
The United States is the only democracy that gives members of its highest court life tenure. In fact, few states provide such a guarantee to their justices and judges.
Life expectancy is much longer now than it was in 1787, when the Constitution was written. From 1787 through 1970, Supreme Court justices served an average of 15 years; justices appointed since 1970 have served an average of 27 years.
Clarence Thomas was 43 years old when he was confirmed, in 1991. If he remains on the court until he is 90, the age at which Justice John Paul Stevens retired, he will have been a justice for 47 years. This is too much power in one person’s hands for too long.
Also, too much now depends on accidents of history, namely when court vacancies happen to occur. President Richard Nixon appointed four justices in his first two years in office; President Jimmy Carter picked no justices in his four years. President Donald Trump picked three justices in four years, while the previous three Democratic presidents served a combined 20 years in the White House but selected only four.
Staggered, 18-year, non-renewable terms would mean that each president would make at least one nomination every two years.
My sense is that there is bipartisan support for this reform, which would require a constitutional amendment. Rick Perry, the Republican former Texas governor, argued for it when he ran for president in 2016. Liberals support it as well.
Term limits should be applied to current justices. Otherwise, they wouldn’t be implemented for decades. Amy Coney Barrett was 48 years old when she was confirmed, in 2020. If she remains on the court until she is 87, the age Ruth Bader Ginsburg was when she died, she will be a justice until 2059.
The question is whether any constituency cares enough about this issue to do the hard work of getting the Constitution amended. That would mean lobbying Congress to propose the amendment and then mounting a campaign for its adoption by state legislatures.
It’s an essential reform, however, and one that may have the national support to be adopted.
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