We Need to Talk About Term Limits

0:00Strict Scrutiny is brought to you by Americans United for separation of church and state. It's back to school season, and this year, 5 million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. Twenty-eight families in Texas, supported by Americans United for separation of church and state, are taking the fight to the Supreme Court. And they need you to amplify their voices before the Supreme Court gets its hands on this case.

0:34And we all know what the Fifth Circuit did. Obviously, they let Texas get away with all of this. They're going to go up, but we're going to fight to get them taken down. That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian. And their kids are in Texas public schools. The story they tell in this video is moving, and we hope everyone hears and shares it. Look, there is a human cost of Christian nationalist policies, like these 10 commandments laws and the decisions the Supreme Court hands down. Every child deserves access to public education where they aren't subject to state-imposed religion or religious instruction or coercion.

1:15Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion. Visit au.org slash 10C to learn more about this case and how you can help join the fight to protect church-state separation. We talked a little bit about this case on our regular episode last week, but there's so much more to be said and to learn about the people who are fighting back. We can eradicate food deserts with this technology. This is Hoda Kotb from Joy 101 with Hoda Kotb. And that was Jaleah Hemmings. She and her husband created Nourish and Bloom Market, an AI-powered grocery store.

1:54Scan a QR code to enter, pick what you need, and walk out. Or as Jaleah puts it, tap, grab, and go 24-7. We started to get flooded with folks saying, hey, I need you in my city. It became their mission to develop a store that could open within three months, even without any infrastructure. And just when we were like, how are we going to accomplish this goal? We won the AT &T Small Business Contest Grant. That$50 ,000 got us over the finish line where we built the first AI-powered grocery shipping container. in the country. For Jalea, it's about building a legacy to show the world that you can solve any problem when you work together.

2:32Having the support of AT &T, the city of Atlanta, is huge. Look at how many people we've been able to help. Connecting changes everything. AT &T. Hello, appliance fans. I'm here at Grand Appliance, where Katie just bought a new Samsung laundry pair. Talk about your experience, Katie. My salesperson was amazing. He knew everything about appliances and was even able to get it on a delivery and install route for tomorrow. Wow, next day delivery? Yes, my laundry is piling up, so this is a lifesaver. There you have it, grand for the win. Check out grandappliance.com for full details. Mr. Chief Justice, may it please report.

3:16It's an old joke, but when a man argues against two beautiful ladies like this they're going to have the last word she spoke not elegantly but with unmistakable clarity she said i ask no favor for my sex all i ask of our brethren is that they take their feet off our necks

3:54Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Kate Shaw, your lone host for this edition of our special bonus series, Hot Supreme Court Reform September. And for this installment of our series, I'm happy to be joined by returning guest Alicia Bannon, a senior director at the Brennan Center for Justice, where she leads the center's judiciary program and its Kohlberg Center on the U.S. Supreme Court. Alicia, welcome back to Strict Scrutiny. Thank you so much for having me. So we're really happy to have you. And as I just said, we are doing a series about Supreme Court reform.

4:28People, I think, have a sense that something has gone deeply wrong with this Supreme Court. There was a Gallup poll in late July that had Supreme Court approval at 33 percent at or near all-time historic lows. So it is not just us who have the distinct impression that something is badly amiss. And we think it's important for conversations about the Supreme Court right now to focus on specific reforms to the Supreme Court. We will definitely continue on this show and in other venues to criticize the court in both general and specific terms. But in addition, we wanted to bring listeners and viewers a series of episodes that were really laser-focused on specific potential reforms to the court, and our topic for today is term limits.

5:18Alicia, this is something that you've been thinking and writing about for quite some time, and I'm excited to get into it with you. But before we drill down on term limits, I want to take a step back and ask you to talk kind of generally about how you would characterize what is so wrong with the Supreme Court. Well, thank you so much for having me and for for starting this conversation. I think it's a really important conversation to have. I think in a fundamental way, the Supreme Court is failing in the role it is supposed to be playing in our democratic system. It has been gutting the role of Congress.

5:52We saw that this term in the Kalei decision, where it eviscerated the Voting Rights Act, in the slaughter case, where it eviscerated independent agencies. The court's also been aggrandizing its own role. So we see that in its conduct on the shadow docket, where it has both kind of vertically, when you look at its relationship with the lower courts, and then when you look at its relationship with the executive branch, it's both been behaving in a way that's unprecedented and frankly inconsistent if you look at how it has engaged with the Trump administration as compared to previous administrations.

6:28And we're just seeing more broadly a lack of respect for the traditional constraints, things like precedent that are supposed to keep the court in its lane. And so I think across a whole bunch of arenas, we just see a court that's not playing the function that we need to play in our democracy. I think that's all exactly right. And I do think that what I find kind of hopeful about this moment is that I think that that diagnosis is beginning to be more broadly, I don't know if broadly enough, but more broadly accepted. And so then I think the question is, are we stuck with the Supreme Court that we have, which is fundamentally disempowering other important institutions in government?

7:06And as you said, asserting this enormous power for itself in ways that really throttle the functioning of democracy. Like, are we stuck with it or are there things that can be done? And I think the answer is emphatically, we are not stuck with this court. There is a lot that can be done, some of it through just the ordinary process of legislation. Some of it will raise questions about sort of constitutional soundness and some of it will not. And so I think that different kinds of reform proposals raise different kinds of questions. So I think there is value both in talking broadly about the Supreme Court and the need to fix what is broken.

7:42But also I think value, as I said earlier, in talking specifically about individual proposals. And so now let's turn to the individual proposal that you and your colleagues at the Brennan Center have spent quite a bit of time talking about and thinking about. and that is term limits for Supreme Court justices. So back in July, you and a couple of colleagues put together a 40-page memo titled Constitutional Analysis of Proposals for Statutory Supreme Court Term Limits. Now, that is, I will say, a fairly academic-sounding title. I am a law professor. I read things with titles like that all the time.

8:17But it sounds academic. But I do think that you guys decided it was important to make clear what the objections to the ability of Congress to impose term limits look like and what the answers to those objections are and how making justices term limited actually does square with constitutional design if you do it right. So I do want to get into the constitutional weeds a little bit. But before that, can you talk a little bit about why, in light of the problems that we have been talking about, term limits for Supreme Court justices are something that we should or maybe even that we need to pursue.

8:56So can you just give us the top line overview of the case for term limits? Absolutely. I think term limits, at least as we think about it at the Brennan Center, is an important starting point for the conversation about court reform. It's really popular. Many polls, over three quarters of Americans support term limits for Supreme Court justices, including a bipartisan majority. So I think one of the things that's really appealing about term limits is that it is a common sense solution. I think there's a basic principle that no one should have that much public power for life, that that leads to a lack of accountability, a lack of connection with ordinary life and ordinary people that's just not good for the functioning of our democracy.

9:42And if you think of at the starting point of justice starting, we're looking at this stage of people who may be on the bench for 40 years, generational power. And so I think one component of term limits and one reason why I think it's so popular is that just basic notion of accountability. Another dimension of term limits, and I'll step back, let me just explain the proposal in a little more detail. Typically, how term limits proposals work is that you have an 18-year term for justices. After that phase, the justices continue to be judges, they continue to hold their offices, but they move to a senior status where they're not hearing at least most of the cases that the court is hearing.

10:25At the same time, you introduce a regularized appointment process. So once the system gets going, you end up with a process where every two years, the president will get a new appointment to the bench. And so in a four-year term, every president will get two and only two seats to fill. Regularizing the appointment process in that way is, I think, another big benefit of term limits, because one of the problems that we're seeing today with the court is that we have a super majority that is completely unconnected to our public values. If you look at how elections have gone over time, right now we should be seeing a court that is much closer as a roughly, you know, kind of 50-50 divide if you look at who's won our presidential elections over the past several years.

11:10And instead, we have this super majority. And so another benefit of term limits is it more closely ties the court to our democracy, to democratic values, and lets it change over time as new presidents take power. Right. So a combination of strategic retirements and just the luck of the draw has meant that Republican presidents have been way overrepresented in the appointments that they have made in the last really half century. So, for example, Barack Obama, two-term president, served for eight years, made two appointments in those eight – I should say had two justices confirmed in those eight years, did in fact make a third appointment of Merrick Garland, who has never given a hearing and, of course, not confirmed.

11:50But so there are two justices appointed by President Obama, Justice Sotomayor and Justice Kagan. By contrast, in just his first term, President Trump was able to make three appointments to the court. And so those reflect enormously different influence on the trajectory of our law, even though Obama at the point that Trump finished his first term had served twice as long. And so there's lots of other kind of unevenness and asymmetry that has tilted in favor of more appointments by and more confirmations of Republican appointees to the court. But that's sort of a contingent fact of recent decades.

12:28But the larger point you're making, I think, Alicia, is that it is just fundamentally undemocratic for people, for justices to serve for decades and to reflect the political will of a previous generation or two as opposed to of the present generation. And that's not to say that justices should serve for a year and turn over immediately. But this 18-year proposal kind of strikes a balance between kind of justices reflecting and channeling through the appointment process the present popular will, but also a degree of stability and not excessive turnover on the court. So that, I think, is the sort of overarching philosophy of the proposal.

13:03Now, say a little bit more, if you would, about kind of how it would work. Absolutely. And I think just to add to that, one of the big advantages of a proposal like term limits is that it promotes a democratic accountability. It kind of addresses that legitimacy deficit that we're talking about, but in a way that still protects judicial independence. So you're not targeting judges and saying, well, we don't like you. We're going to boot you off the fence. It's a regularized process that applies equally to all justices, but allows it to be more closely tied to the democratic process in a way that still respects the court's role.

13:35And so basically, as I was saying, if you have a nine-person court and 18-year terms, over time you can end up with this regularized process. With respect to how those terms work, the proposals vary, but typically you have a dynamic where judges for the first 18 years, it will look essentially as it looks today. So justices will sit on the court, hear cases, decide what cases to take up, etc. And then after that point, the justices transition to a senior status. So again, they still hold their office. They're not getting kicked off the bench, but their role is changing. And so depending on the proposal, in some instances, the proposals say that those justices will hear cases on the lower court.

14:19They may continue to hear cases under the court's original jurisdiction. So those instances where the court is hearing cases as a trial court, they may step in when other justices need to recuse themselves. They may provide other sorts of administrative support to the court. So they're playing a role, but it's a different role. And I think one of the things that's really interesting that a lot of people don't know is that we actually already have a senior judge system that does apply even to Supreme Court justices. And that's been in effect for about 100 years. We've had a senior judge system.

14:50And so the difference between that system and what we would have now is that the biggest difference is that instead of it being up to the judges to decide, OK, we're going to take this senior status. Instead, you have a regular schedule that's set by Congress that says at this phase, your role is going to change and you will take on this new senior role in the court. This episode of Strict Scrutiny is brought to you by Alloy Health. Dealing with menopause alone, it's not just you. Almost 50 % of women wait three or more years before seeking relief from menopause symptoms. Don't normalize women's suffering.

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19:35A couple of other logistical questions, and then I want to turn to the constitutional arguments. First, so if once this is phased in completely, say every president in like the first and third year of a single term gets to make an appointment, do these proposals account for the possibility of a Senate refusal to confirm? And sort of what does happen if the Senate doesn't confirm? doesn't that give the Senate the ability to just kind of thwart the way this scheme is supposed to work? So there's certainly still room for Senate gamesmanship, right? The Senate plays a role in our confirmation process.

20:07They have to confirm justices in order to take the bench. But I do think that this reform can be done in a way that reduces the likelihood of that kind of obstruction for a few reasons. First off, I think there's some just concrete steps you could take to improve the confirmation process, creating a fast-track process that at least requires the Senate to actually do an up or down vote on these nominees. So what we saw, for example, in the Merrick Garland context was that they didn't even give him a hearing. They didn't even have to take a vote. So they were able to kind of avoid that accountability.

20:40So I think one thing you can do is you can set in place systems that would require the Senate to actually consider these nominees and vote on them. I also think you could potentially structure it in a way where the process would happen in the first two years of the president's term so that you would have an intervening election where, again, there could be another opportunity if you're seeing that kind of obstruction for voters to voice objections and push for confirmation. I think that the last thing I'll say and one of the real advantages of term limits is that it does also lower the stakes of this whole process because you're not looking at justices who are going to hold their offices at least or hold their current positions, have their full powers for 40 years.

21:25And you're not having a dynamic where because of strategic retirements, this may be your only bite at the apple to transform the court. And so I also think part of what we think could happen with term limits is there's somewhat of an opportunity to reset the process and turn the temperature down a little bit. And shifting those incentives can help lead to a more functional confirmation process. Got it. Okay, so now to the constitutional case. So unlike something like the size of the Supreme Court, which is clearly for Congress to decide, and Congress has historically changed the size of the court, although it's been set at 9 for 150 years, but clearly Congress, by statute, can create a 13-member, 15-member, 17-member court.

22:07I don't think there's any serious constitutional argument against that. By contrast, changing the nature of Supreme Court service by, as you're describing, limiting the amount of time that justices have their full powers as active justices would be something genuinely new. Congress has not done that before with respect to the Supreme Court. So what are the constitutional arguments against the viability of a proposal along the lines of the one you're describing? And then I want to get to the responses to those objections. Sure. I think the primary objection, the primary question that comes up around Supreme Court term limits is, is it consistent with the Constitution?

22:46Article 3 of the Constitution says that judges, including justices, hold their offices for good behavior. That's language it used, offices, good behavior. And so the question is essentially, is a term limits proposal like this consistent with Article 3 of the Constitution? And I'll say when I first started looking into these issues, I was like, I don't know if this is this possible. And I had to really dig in, read, read case law, read the history and really look what persuaded me was really appreciating the both. Both if you look at Article 3 of the Constitution, there's not that much in there.

23:21It really leaves almost everything in terms of the structure and design of the Supreme Court and the judiciary branch in general to Congress. And if you look over time at how Congress has exercised those powers, really a lot of the components of a term limits proposal have actually been exercised by Congress over time. And so I think when you put that together and when you recognize that I think the design of the Constitution, particularly Article 3, was done in a way very clearly, I think, to let Congress figure out the best way to design this system, to design a court that can play the role that it needs to play in our system and recognize that those needs may change over time.

24:04I think there's a very strong argument that this is within Congress's power. Well, and will you say more about that? So what, even if Congress hasn't done exactly this, what you're describing, What has Congress done? I like this notion that basically we have been under this mistaken impression that this kind of good behavior language in the Constitution has this totemic significance. And the thing it has to mean is service for life. Justices have to decide when to retire absolutely or serve until they die. And like that's the nature of the Constitution's design. And really, that's, I think, putting way too much weight on those two words, good behavior.