Witt: Should Supreme Court justices be subject to term limits?

Published 8:58 am Tuesday, January 30, 2018

Should Supreme Court justices be subject to term limits?

In a word, yes.

Well, why aren’t they?

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Primarily because the U.S. Constitution – despite being a really superlative document – simply doesn’t say much about the Supreme Court.

In fact, the Constitution does not stipulate how many justices shall make up the court.  It does not state that justices must be attorneys.  And it does not even mention a Chief Justice, except in another article which only states that the ‘Chief Justice’ shall preside over impeachments.

And, as to the terms of justices, Article III, Section 1 of the Constitution only remarks: “The Judges, both of the supreme and inferior courts, shall hold their Offices during good Behavior,…” and this has apparently been interpreted to mean that a justice can retain his position from the day he or she is appointed until his or her death (which is the condition which now prevails).

It was not until the Judiciary Act of 1789, enacted by Congress, that the size of the court was set at six justices, including the Chief Justice.  Of course, the size of the court has changed over 200 years, now consisting of nine justices.

It might be difficult to argue with life terms of the Court, based on the wording within the Constitution, regardless of the fact that it is somewhat vague, especially since ‘good’ is simply an adjective which should never be a part of a legal tenet.

But the fact remains that, too often, lifetime appointments result in the Court becoming hidebound philosophically when either conservative or liberal appointees dominate for exceedingly long periods of time and are unable or reluctant to adjust their own personal philosophies to the exigencies of the time (the Dred Scott decision being perhaps the most egregious example of a Court’s ruling influencing civil discourse for a long period of time).

It’s possible that the authors of the Constitution understood that the Court should not be constrained by political pendulum swings, and that is a good thing.

But the same result could probably be accomplished without placing justices on the bench for such a long period.

The important thing is that an appointment not be influenced by political swings and that means making the tenures long enough to avoid such.

There have been suggestions that appointments be limited to eighteen years, with a new justice appointed every two years, thus assuring complete turnover every eighteen years.

Maybe.  But this doesn’t take into account the possible uneventful death of a justice.

Eighteen years might work regardless.  Or twenty years.  Whatever the period settled on, it simply needs to be of sufficient length to assure no influence from changing political atmospheres connected to presidential elections.

The Constitution has been modified numerous times.  It is a document which lends itself to being changed to accommodate current eventualities, so perhaps it is time to modify it once again and insert an amendment stipulating specified terms for Supreme Court justices, much as the twenty-second amendment set the number of terms for President at two.

But life terms are simply too long.

Chuck Witt is a retired architect and a lifelong resident of Winchester. He can be reached at chuck740@bellsouth.net.