Senate Democrats Push Supreme Court Term Limits

They are advancing a proposal for a maximum of 18 years, with the president making a new appointment every two years.

Sen. Sheldon Whitehouse (D-R.I.) speaks during a congressional hearing in Washington on Feb. 25, 2021. Susan Walsh/Pool/Getty Images

A group of Senate Democrats proposed limiting Supreme Court justices’ terms to 18 years in order to “ensure the Court is more accountable to the American people.”

Announced on Oct. 19, the bill would require the president to appoint a new justice every two years with each losing their ability after 18 years to hear cases on the appellate docket, which is where most of the Court’s major cases (e.g. Dobbs v. Jackson Women’s Health and Roe v. Wade)  have historically originated.

After 18 years, justices would still be able to hear the much smaller subset of cases that are part of their original jurisdiction.

Sen. Sheldon Whitehouse (D-R.I.), who authored the legislation, released a statement on Oct. 19 denouncing an “organized scheme by right-wing special interests to capture and control the Supreme Court, aided by gobs of billionaire dark money flowing through the confirmation process and judicial lobbying, has resulted in an unaccountable Court out of step with the American people.”

“Term limits and biennial appointments,” he added, “would make the Court more representative of the public and lower the stakes of each justice’s appointment, while preserving constitutional protections for judicial independence.”

The proposal comes amid concerns about aging public servants like Senate Minority Leader Mitch McConnell (R-Ky.). Former Justice Stephen Breyer, the most recent Supreme Court justice to retire, was 83 when he left the Court.

The prior vacancy came after Justice Ruth Bader Ginsburg died at the age of 87.

Mr. Whitehouse’s statement seemed to target groups like the Judicial Crisis Network (JCN), which he’s previously called out by name and which has worked to influence judicial nominations.

JCN president Carrie Severino, a former clerk of Justice Clarence Thomas, told The Epoch Times that Mr. Whitehouse’s legislation was a veiled attempt to eliminate originalist judges like her former boss.

Mrs. Severino has accused Mr. Whitehouse of threatening the Court in an amicus brief for New York State Rifle and Pistol Association v. City of New York.

“We’ve seen this movie before,” Mrs. Severino said. “Sen. Whitehouse has been waging an intimidation campaign against the Court for years now.

“His latest threat claims to be taking the politics out of Court nominations but his real agenda is unmistakable: to get rid of originalist justices starting with Justice Thomas.”

Associate Justice Clarence Thomas sits during a group photograph of the justices at the Supreme Court in Washington on April 23, 2021. Erin Schaff/Pool/AFP via Getty Images

Justice Thomas is the longest-serving justice on the Court as he assumed office in 1991 after being nominated by former President George H.W. Bush.

President Bush’s son and eventual successor, former President George W. Bush, nominated both Chief Justice John Roberts and Justice Samuel Alito, who have been on the Court the longest after Justice Thomas.

Mr. Whitehouse previously filed an ethics complaint against Justice Alito and vowed to investigate Justice Thomas after he disclosed gifts from billionaire Harlan Crowe.

Seven other Democrats, including Sens. Mazie Hirono (D-Hawaii), Cory Booker (D-N.J.) and Richard Blumenthal (D-Conn.), are sponsoring the bill.

Supreme Court justices have historically received lifetime tenure while conventional understanding posits that judges should rule according to the law rather than responding to popular interests.

The Rhode Island senator maintained that his bill was a mechanism for depoliticizing Court appointments. The total number of justices could presumably double or reach even higher numbers as justices, under his plan, continue hearing original jurisdiction cases after their 18-year term with the appellate docket.

Many senators—both Republican and Democrat—have expressed support for term limits while lamenting the Court’s actions.

Others like the late Sen. Dianne Feinstein (D-Calif.) and Sen. Lindsey Graham (R-S.C.), who sits on the Judiciary Committee with Mr. Whitehouse, have defended lifetime tenure.

Article III of the U.S. Constitution states: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

“Good behavior” is considered to mean justices receive lifetime tenure, except under certain circumstances.

Mr. Whitehouse’s proposal would seem to get around this provision by maintaining lifetime tenure for justices but only for cases that fall under the Court’s original jurisdiction.

United States Supreme Court Justices pose for their official portrait at the Supreme Court in Washington on Oct. 7, 2022. Alex Wong/Getty Images

Sen. Josh Hawley (R-Mo.), another member of the Judiciary Committee, has suggested another rotational scheme in which appellate judges temporarily leave their posts to serve on the Supreme Court.

“Article III demands that judges be appointed for life, but it does not necessarily require that Supreme Court justices serve for life—provided they remain judges when not on the Court,” he wrote in 2012.

“Thus Congress could stipulate that the Supreme Court be staffed with nine life-tenured judges drawn at random from the courts of appeals.

“These judges would serve on the Supreme Court for a term of several years, and then return to their original appointed posts on the lower appellate courts, to be replaced by another group of nine drawn by lot.

“The rotation of the judges on and off the Court could easily be staggered to ensure some continuity from year to year.”

Sen. Marco Rubio (R-Fla.) previously called for a constitutional convention in order to install term limits for both the Supreme Court and members of Congress.

The political Left has issued many calls for Court reforms in recent years as Republicans secured a 6-3 conservative majority and the Court issued several controversial rulings, such as the overturning of Roe v. Wade.

Mr. Whitehouse has joined a chorus of voices on the Left proposing that the Court be more accountable to the will of the people.

Planned Parenthood, the nation’s most prominent abortion provider, also proposed term limits while its CEO said the Court’s “legitimacy” was “in question” since it was purportedly “out of step” with the majority of the American public.

Mr. Whitehouse’s legislation received endorsements from multiple groups, including Citizens for Responsibility and Ethics in Washington, Demand Justice, and the Brennan Center for Justice.