Democratic Think Tank Embraces Term Limits for Supreme Court

August 3, 2020 Updated: August 3, 2020

A major think tank on the left has come out in favor of limiting the terms of justices of the Supreme Court, who currently serve for life, to reduce what it terms the high court’s “outsized power.”

The Center for American Progress (CAP), based in the nation’s capital, is an influential think tank that has sometimes been referred to in the media as a government-in-waiting when Republicans are in power. The organization was founded in 2003 by John Podesta, who became a counselor to President Barack Obama and was chairman of Hillary Clinton’s 2016 presidential campaign.

Presumptive Democratic nominee for president Joe Biden, who was Obama’s vice president for eight years, hasn’t been receptive to imposing term limits for the justices. Andrew Yang, who previously sought the Democratic party’s presidential nomination, endorsed term limits.

Most proposals to cap justices’ terms have set the limit at 18 years on the high court bench.

The traditional argument against term limits is that justices have to be independent of the political process.

The report by Maggie Jo Buchanan, CAP’s director of legal progress, comes as the Democratic Party is drafting language for its official 2020 platform about “structural court reforms to increase transparency and accountability” within the federal judicial system.

“The idea of term limits for the Supreme Court is gaining momentum and continues to enjoy support by a variety of progressive—as well as conservative—legal experts,” Buchanan said in releasing the report Aug. 3.

Congress needs to act, according to Buchanan.

“The rules governing the U.S. Supreme Court must be updated to reflect the reality of life in modern America. The average tenure of a Supreme Court justice has significantly lengthened since the establishment of the federal judiciary in the 1700s, giving outsize power to nine individuals in a way the framers of the Constitution could never have imagined.

“This longevity has resulted in a lack of regularity in vacancies, introducing further randomness to the judicial selection process. As a result, the confirmation process for the highest court has become politically divisive, with extremely narrow votes and theatrics from the nominees themselves. This state of affairs is untenable; policymakers must address it by enacting legislation to create term limits for justices.”

Each individual justice now has “more power over American life in a way that no other branch of government does,” she writes.

“For example, members of Congress, on average, are younger than the current members of the Supreme Court, and every appointee before Justice Sonia Sotomayor has been in office longer than the average senator. And, of course, the president is term-limited by law.”

The justices’ “ever-longer lifetime tenures” have increased the stakes every time there’s a new nomination to fill a vacancy on the high court.

She offered Senate Majority Leader Mitch McConnell’s refusal to hold confirmation hearings for Obama high court nominee Merrick Garland as an example. McConnell, a Kentucky Republican, kept the vacancy created by the death of Antonin Scalia open for months so that Donald Trump, the incoming Republican president, could fill it.

Curt Levey, president of the Committee for Justice, told The Epoch Times that he’s skeptical of proposals to limit Supreme Court justices’ terms.

Such plans seem “motivated by a vague feeling that these guys are too powerful,” Levey said in an interview.

“But they’re still going to be super-powerful for 18 years, so it’s very hard to see how it will lead to decisions that people are happier with. And it is certainly not going to help conservatives,” he said.

“The left,” he said, “has this bizarre conception that it’s a conservative court.”

Trey Mayfield, an attorney who has argued before the Supreme Court, described term limits as an “interesting” idea, “but probably not all that necessary.”

“There are nine of them. If any one of them starts losing mental fitness, the rest can pick up the slack. And while it’s true that people live longer now, it’s also true that infant mortality was the larger reason for a lower average age at the time of the founding. If you made it to 5, you were likely going to live a good, long time.”

One of the first chief justices, John Marshall, served for 30 years, until he was 79, Mayfield said, adding, “there’s a better argument for age limits for senators and congressmen.”