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09/28/2020

Are Limited Terms for Supreme Court Justices Constitutional?
Michael Ramsey

From Kalvis Golde at SCOTUSblog: House Democrats to introduce new bill for Supreme Court term limits.

With the debate over Supreme Court reform taking center stage in the 2020 election after the passing of Justice Ruth Bader Ginsburg, three members of the House of Representatives on Tuesday will introduce a bill to establish term limits for Supreme Court justices.

Democrats Ro Khanna (Calif.), Don Beyer (Va.) and Joe Kennedy III (Mass.) unveiled the bill, the Supreme Court Term Limits and Regular Appointments Act, on Friday. If passed, the act would institute regular appointments to the Supreme Court every two years, with new justices serving for nonrenewable 18-year terms. After 18 years, appointees would become “senior justices” able to temporarily rejoin the court in the event of an unexpected vacancy. Although the current eight justices would be exempted, the two-year appointment cycle would take effect immediately, without waiting for them to retire.

The consensus of legal scholars seems to be that this is unconstitutional if done by statute.  I'd like to be a contrarian and say otherwise, but I can't.  Indeed, I think this is another example (as with the Vice President's tie-breaking power on appointments, discussed here) where the Constitution's text is clear, if read carefully and without a view to evasion.

Article III, Section 1 provides: 

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour...

I'll assume here that the "good Behavior" standard means the judges hold their offices for life unless impeached and removed under Article II, Section 4.  (My colleague Steve Smith and my sometime co-author Saikrishna Prakash have an interesting article arguing that the original meaning of this phrase is something different, but it's not relevant to the present debate).  So, as a starting point, a simple term-of-years for Supreme Court Justices is a constitutional non-starter.

The Khanna et al. proposal apparently tries to get around that restriction by redefining the "office" of Supreme Court Justice as hearing cases for 18 years (I'll call it phase 1) and then serving as a backup "senior Justice" in case of temporary vacancies (phase 2).  Rotating from phase 1 to phase 2 wouldn't be a removal from office, it is argued, because the office, by definition, includes both phases of service.

This doesn't work for me.  Article III, Section 1 creates "Offices" of "Judges ... of the supreme and inferior Courts." Necessarily, holding the "Office" of judge of the supreme Court means acting in a judicial capacity as a member of the supreme Court, not simply having the title and filling in occasionally.  This constitutionally defined office can't be redefined by statute to mean the office of acting in a judicial capacity as a member of the supreme Court for a while and then doing something else for the balance of one's tenure.  (Otherwise, Congress could define the "Office" of Supreme Court Justice as serving as a Justice for 5 years and then serving as dogcatcher in East Outback, Alaska, for the rest of the time).  And Article III, Section 1 goes on to say that the judges shall hold "their Offices" -- that is, their offices as members of the Supreme Court -- during good behaviour.

Side point #1:  Apparently (based on immediate post-ratification practice) Congress can, however, add additional duties to the office of Supreme Court Justice (such as riding circuit).  That seems a little problematic.  Could Congress say that, in addition to the duty of serving as a member of the Supreme Court, the office of Supreme Court Justice includes the duty of serving (in alternate months, perhaps) as dogcatcher in East Outback, Alaska?  This may be a case where one has to let post-ratification practice override intuitions.  (And it would be a way to encourage Justices to retire early!)

Side point #2: The argument is, oddly, a little harder with regard to lower court judges.  Since the office of lower federal court judge is created by statute, couldn't Congress use its office-creating power to create an office that has primary adjudicatory powers in a lower federal court for only a set term, and then only temporary vacancy-filling powers after that (like the Khanna proposal does for the Supreme Court)?  But on reflection, I think not.  The Constitution doesn't empower Congress to create offices that include partial service on the lower courts.  It empowers Congress to create offices that are service on the lower courts.  If Congress chooses to create such offices, then the persons appointed to those offices hold them (that is, the offices of service on the lower courts) during good behavior.  Congress can give all or none of that office, but it can't give only part of it.

Side point #3: Steve Calabresi had this op-ed last week in the New York Times calling for a constitutional amendment establishing Supreme Court term limits.  Ilya Somin comments here at Volokh Conspiracy (arguing along the way that statutory term limits are unconstitutional).