As the Supreme Court concludes
the 2013-2014 judicial term, it is hard to overstate the impact that the
rulings of the Court have on the lives of so many Americans. This term,
amongst other critical questions, the Court found streaming television
startup Aereo to be in violation of copyright and broadcast laws, and, in a case with broad-reaching implications for privacy rights, held that during an arrest, law enforcement may not search
the contents of a mobile phone without a warrant. In perhaps one of it's most controversial and contested rulings this term. the Court found that certain private,
for-profit employers can opt out of providing certain types of health care coverage
(such as contraception for women), if such care violates the employer’s stated religious
beliefs.
Examining the last several years of cases more broadly, it
is clear that the Court’s reach has been just as wide. Amongst it's other rulings,
the Court has found
crucial portions of the 2010 Affordable Care Act (Obamacare) constitutional,
affirmed the permissibility
of sectarian public prayer in government meetings, upheld
a Michigan ban on affirmative action in college admissions, and struck
down the Defense of Marriage Act, which barred federal recognition of gay
marriages performed in various states, while allowing
for the resumption of same-sex unions in California.
Considering the Court’s role as the nation's ultimate arbiter for questions of law, it is vital that the Court function in as
effective, thoughtful, and fair a manner as possible. Towards this end, a
Constitutional amendment ought to be adopted, under which, for every current
justice who retires from the Court, his or her replacement will only be allowed
to serve on the Court for a period of eight years, after which, a new justice
will be nominated by the president, and confirmed by the Senate.
This change will reduce the risk of any single judge gaining
excessive influence on the court’s rulings, and thus becoming overly powerful. It
will also ensure that judges have a heightened degree of familiarity with current
societal norms and values, which can lead to better, more responsive decision
making. Additionally, while terms of various lengths could be considered, eight
years is the ideal time in order to ensure that justices have the expertise
needed for this position, and are able to effectively collaborate with other
justices on the Court, while also offering appropriate limits on their power.
Lifetime Supreme
Court appointments allow some justices to accumulate excess influence and power
Quite often, Supreme Court decisions are decided by
unanimous 9-0 votes
(this was the case for 49%
of rulings in the 2012-2013 term, as were 52% of rulings from 2009-2011). At
the same time, by historical standards, today’s Supreme Court is amongst the
most divided
in American history. On many of the most contentious issues of today, justices
tend to vote with other justices who were appointed by presidents from the same political party. The four justices appointed by Democratic presidents Clinton and Obama (Ginsburg,
Breyer, Sotomayor and Kagan), come down on one side of an issue, while four of
the five appointed by Republicans (Scalia, Alito, Thomas and Roberts), tend to
rule in an opposite manner.
Prior to President
Obama’s election (after which Justice Sotomayor and Justice Kagan were
appointed), various other 4-4 splits often emerged, as liberal-leaning Republican
appointees John
Paul Stevens and David
Souter, tended to vote with Clinton appointees Ginsburg and Breyer, to
comprise a liberal wing of the Court, which often faced off against the
remaining justices appointed by Republican presidents.
Each of these scenarios leave us with a variable, undecided ninth
vote. In recent years, the role of the “swing” justice, who plays the tiebreaking
role on some of the most divisive issues before the Court, has been played by Justice
Anthony Kennedy, appointed by President Reagan in 1987. At the time of his
appointment, Justice Kennedy enjoyed the respect of both liberals and conservatives,
and was seen as a relatively noncontroversial
choice; as a result, Kennedy was easily confirmed by the US Senate.
Over time, however, despite leaning to the right in his overall judicial outlook, Justice Kennedy has occasionally broken with conservative orthodoxy, especially on
questions of individual rights, and allowed the Court’s left flank to
prevail in some high-profile matters. In other instances, Justice Kennedy has provided
the decisive vote for rulings that advance the outlook of the Court’s
conservative wing.
In just the last six years, Justice Kennedy has cast the deciding fifth
vote between the Court’s liberals and conservatives, responsible for striking
down the Defense of Marriage Act, allowing
for political spending by corporations and labor unions, upholding
the rights of citizens to own firearms for personal self-defense under the
Second Amendment, granting terrorism suspects detained
at Guantanamo Bay the right to challenge their detentions in American federal
courts, permitting
religion-specific prayers at city government meetings, barring states
from executing defendants who committed violent crimes other than murder, and,
most recently, allowing for companies like Hobby Lobby to opt
out of covering contraception for female employees.
Statistics further demonstrate Justice Kennedy’s outsized role on the Court; in
the 2008-09 term, Justice Kennedy’s vote was in the majority
92% of the time, including in 18 of 23 decisions that were split 5-4. In the
2010-2011 term, Justice Kennedy was in the majority
for 14 of the 16 cases that were decided by a 5-4 vote.
As a result of his pivotal role on a divided Court, parties
presenting their cases before the Court , as well as other justices, shape
their arguments in a manner that will most effectively influence Justice Kennedy. As
Supreme Court observer Dahila Lithwick noted,
it often seems that the “…hottest
game in Supreme Court brief-writing is to quote Kennedy gratuitously and often.
In other words, flattering Kennedy has become something of an art.”
Lithwick further
argues that both liberal and conservative Supreme Court justices have sought to
ingratiate themselves with Justice Kennedy, in hopes that he might vote with them on a
particular case. Other justices often cite to Justice Kennedy’s prior rulings in their
own opinions drafts, and Chief Justice Roberts rewards Justice Kennedy with desirable
writing assignments, hoping that by allowing Kennedy to closely shape opinions,
he will vote with Chief Justice Roberts and the Court’s other conservatives.
Because of the unique role he plays on today’s sharply split
Court, despite being just one of nine justices on the court, Justice Kennedy’s
particular interpretation of the law will have a disproportionate impact on
American jurisprudence, for decades to come. However one might feel about Justice Kennedy’s stance on any particular issue, it is troubling that a single,
unelected official, permitted to serve for the remainder of his life, has the
final say on some of the most pivotal questions of the day, with his rulings
having an impact for decades to come. Functionally, on some of most important
and controversial issues of the day, the United States Supreme Court, is, and
will continue to remain, the Kennedy Court, with Justice Kennedy’s interpretation
holding sway as the law of the land. One person enjoying such singular, largely
unrestrained power, is incongruous with the core ideals of a constitutional
republic.
Term limits for Supreme Court justices would be an important
step towards solving this problem. If each justice on the Court were to serve
for a period of just eight years, over time, more presidents, likely of varied
ideological persuasions, would enjoy the opportunity to nominate Supreme Court
justices. This means that the composition of the Court, from an ideological
standpoint, will shift more frequently, and as a result, any individual justice
is less likely to be the all-powerful deciding vote on pivotal matters for
years on end, as is the case with today’s Court.
Of course, this analysis presumes that presidents from one
party, and even one wing of a political party (i.e. progressive Democrats or
Tea Party Republicans) are not consistently elected to office for decades on
end. Despite the demographic disadvantages
that today’s GOP faces, a broad examination of American history suggests that
one party rarely remains in control of the presidency (or Congress)
indefinitely. As each party adapts and evolves (or dies out, and makes room for
new alternatives), presidents from different ends of the political spectrum will
likely be elected. Over time, the Court’s makeup will necessarily shift,
reducing the importance and influence of any single judge.
Term limits will result
in judges who better understand the broader political
and social impact of Court rulings, thus preparing more thoughtful opinions
It is no secret that life expectancies in the United States
have increased
since1787, when the framers of the Constitution signed this guiding document. The Constitution provided that Supreme Court
justices could hold their offices provided “good
behavior”, a provision that has come to mean, barring gross
misconduct, a justice may serve on the Court for his or her entire life. Today, as compared to the mid 1700's, justices not only live longer,
but also serve on the Court for significantly greater periods of time.
Examining the tenures of recent Court retirees, and their counterparts
who served on the earliest days of the Court, drives this point home. The first
nine justices to serve on the Supreme Court completed an average tenure of just
over 9 years, while
the nine most recent departures from the Supreme Court served for an average of
slightly less than 22 years. Clearly, lifetime appointments have a different meaning
today, than from the nation’s earliest days.
Numerous social, cultural and technological changes have
taken place since the longest-serving member of the Court, Justice Antonin Scalia,
assumed his seat on the Court in 1986. The threat of terrorism has led to the
creation of both a gargantuan
national security state at home, as well as an extensive detention system in
Guantanamo Bay, Cuba, and the use of military
force against American citizens suspected of involvement in terrorist
activity.
On the social and cultural front, gay marriage is now legal
in 17 states, and gay relationships are broadly accepted in today’s society. Crime
rates have declined
at a remarkable rate, though incarceration rates remain
the highest in the developed world.
Perhaps one of the most striking differences between 1986 and
today is the rise of the Internet, along with numerous groundbreaking
advances in both digital connectivity, and major strides in
biotechnology. With all of this technological progress comes a number of novel,
challenging legal issues, ranging from the nature of cell phone privacy (which
the Court just issued a groundbreaking
ruling on just last month) to the collection of metadata
by the NSA, to questions regarding net
neutrality and the issuance of patents
for human genes.
Justice Scalia is no doubt aware of many of these changes; after
all, as a member of the Court, he has had to rule on cases concerning some of these
questions. However, Justice Scalia, and anyone else who lives and works in the nation’s
capital for an extended length of time, and spends the majority of his or her
days pondering legal questions, is simply unlikely to have the geographic
proximity, and cultural context, to really feel the current pulse of the rest
of the nation, which is relevant to reaching an effective understanding of
these issues.
If a justice serves on the Court for just eight years, it is
highly probable that, prior to his or her Court appointment, he or she lived
outside the greater Washington DC area. This future justice might have watched
the local news, read regional newspapers, and attended events in the community.
Perhaps he or she had a neighbor who was openly gay, or, if a justice has
children, they might have attended a school with students from various
cultural backgrounds.
His or her life outside the confines of the Court, could,
through casual observation, also lead to a deeper understanding of how security
procedures, and attitudes around terrorism, security, and personal privacy, have changed since 9/11. A potential justice might also gain some firsthand perspective on how the public uses
technology, and how cultural norms around gender
roles have shifted over time.
Essentially, since term limits neccesarily dictate that a
justice was not serving on the Court until quite recently (and won’t be on the
Court for very long), he or she will be in a stronger position (unlike someone
with decades on the Court) to effectively understand how Americans of today actually
live, and how the questions before the Court are relevant to, and have an
impact upon, the nation as a whole. This will help facilitate a more thoughtful
and measured approach to judging, as a justice is preparing his or her rulings in a broader, more nuanced context.
A justice’s rulings can be powerfully shaped not just by observation and proximity to various conditions,
but also through personal experience. A recent study found that male judges with
daughters were more likely to rule in favor
of women’s rights than those who did not have female children; a child’s
gender, it seems, colors a judge's view of women's status more broadly. One of the court's most recent appointees, Justice Sonia Sotomayor, herself noted the relevance of life experience for
judges, in a (now controversial) 2001 talk, observing that the
gender and ethnicity of a judge “can and will make a difference,” and that “personal experiences affect the facts that judges choose to see.”
Studying the lives of other judges, this becomes a fairly prevalent theme. Judicial scholars have argued that Justice
Scalia’s judicial approach was in part shaped by the personality differences
between his mother’s and father’s branches of the family, while former Justice
Steven’s belief in vigorous dissents when judges disagree with the majority,
was a product of a bribery case he was tasked with investigating earlier in his
career.
The 2002 case Virginia v. Black
provides a powerful example of precisely how a justice’s life experience can
shape his thoughts on a case. In this case, the defendants challenged a
Virginia law that prohibited the burning of crosses, a traditional practice of
the Ku Klux Klan and other white supremacist groups. The Court seemed likely to
strike down the law as violating First Amendment free speech protections, as
had been done with other laws barring symbolic speech.
However, during oral arguments by lawyers for each position, Justice Clarence Thomas, who was born in a
segregated neighborhood in Georgia, inquired as to whether cross burning should actually be understood not just as speech, but
rather, within the broader context of lynching and racial terrorism in the
United States. Thomas’ inquiry, likely
colored by his own personal background, has been seen as instrumental in the Court’s eventual ruling
upholding the cross burning ban in Virginia.
It is tempting to argue that justices should decide a case by solely considering facts,
existing case law, and relevant public policy arguments, and that a justice's observations and experiences should play no role in the Court's rulings. In a strictly
objective world, free of any human bias due to one’s life trajectory, this
might be possible. However, that is not the reality we inhabit; essentially,
such an argument is demanding that justices defy their own innate psychology and biology.
Recent neuroscience research has demonstrated
that throughout life, the human brain can be altered by new knowledge and
experiences (this is referred
to as neuroplasticity or brain plasticity). Additionally, a decades-long wealth of prior psychological
and psychiatric studies has shown that numerous aspects of our current
behavior and thinking are the product of prior experiences. Given these scientific realities, demanding that a member
of the Court to be immune to the facts of human existence, simply isn’t feasible.
Clearly, the judicial opinions of each justice are shaped in
part by his or her life story, that is, by what he or she has witnessed and
personally experienced. Since justices are dealing with matters of great
relevance for the general public, it is crucial for a justice to have a broad,
contemporary, and geographically varied personal history to draw upon. Term
limits for justices will help to facilitate this process, which will in turn
lead to better decision-making by the Court.
Why an eight year
term?
Why can’t justices serve 12 year
terms? Or, on the other end of the spectrum, what is wrong with just two years
on the Court? Virtually all strictures governing how long one can lawfully occupy
a particular office are somewhat arbitrary, really, the product of longstanding
conventions. In this case, a term of eight years is relevant in that a
president can only hold office for eight years. Limiting justices to a term of
eight years is a symbolic acknowledgment that, just as with the president,
members of the Court, collectively, wield considerable power to shape national
policy. Thus, just as with occupants of the Oval Office, there is a critical
need to place well-defined limits on that power. Term limits of eight years
offer constitutional acknowledgment of this political reality.
However, symbolism on it's own is not a strong enough basis for such a momentous change in policy. One important factor in
implementing term limits is whether the length of a term offers justices enough
time to learn how to judge effectively in such a high-stakes arena as the US
Supreme Court. Virtually every job involves a learning curve, and the Supreme
Court is no different.
Since the vast majority Supreme
Court justices on today's Court were drawn from the ranks of
the federal Court of Appeals judges, justices already have significant experience
in considering complex legal issues at the appellate level, and working as part
of a panel of judges. So, while some period of adjustment is likely required,
eight years will be far more than enough time to get up to speed and serve as
an effective justice. A very short term (again, let’s say two years), however,
may not accomplish this goal, as justices are forced to leave the bench when
they’ve barely settled into their seats, and have actually heard and ruled on
very few cases as members of the Court, and thus haven’t had an opportunity to
accumulate the expertise that several years on the Court would provide.
Ensuring some degree of stability
and continuity is also an important consideration for the Court. If justices
were to serve on the Court for just two years, a large number of justices will
be serving on the Court in a relatively short period of time. This has the
potential to be highly disruptive for the Court, as justices come and go
without having the chance to form meaningful relationships and build trust with
their colleagues, which can important for reaching well-crafted, effective
rulings.
Justices issue rulings by meeting
in an initial conference,
in which they announce how they intend on voting in a particular case. As the
stances of the various justices, and so the final outcome of the case, becomes
clear, a justice is assigned to write the majority opinion. Either the Chief
Justice, or, if he or she is not in the majority, then the most senior justice,
in terms of how long he or she has served on the Court, decides who will write
the opinion; a justice can also select himself or herself for this task.
The justice writing the majority
opinion will prepare and distribute a draft opinion to the other judges also
voting in the majority. Through feedback and consensus, a final ruling will be
formulated; justices who agree with the majority ruling (at least in part), can
also prepare a concurring opinion, which will typically accept part of the
majority’s findings, but add additional arguments or points to consider.
Dissenting opinions are also
prepared through discussion and deliberation, by those judges who were not in
the majority; concurring opinions are also allowed in connection with a dissent.
In some matters, the process of circulating and reaching a ruling on a case is
believed to have resulted
in a changed outcome for that case; through deliberation and debate, a justice,
or particular justices, shifted their stances.
While members of the Court have, over
the centuries, offered quite a few vigorous
dissenting opinions, this entire process of deciding cases is, in many respects, a collaborative
undertaking. In order to function as an effective unit, each justice on the
Court must have some degree of familiarity with and confidence in the abilities of
their fellow justices; otherwise, it can be challenging for even justices who share similar ideological stances to productively work together.
If justices only served on the Court
for two years, then, no matter how superb a justice’s credentials might be, there
really isn’t much time for his or her colleagues to build a strong working relationship.
As a result, the Court might become increasingly dysfunctional and fractured.
Eight year terms can help us avoid this problem, while placing an effective limit
on the power of each justice on the Court.
Conclusion
Given the need for a Court which offers relevant, effective
judicial guidance, and where no single justice has an unusually powerful voice
in rulings that determine the social and political trajectory of the nation, it
is clear that term limits for Supreme Court justices are absolutely vital. The
changes brought about by term limits will take time to have an impact, but, in
order to improve our judicial system, and by extension our nation, the movement
for Supreme Court term limits must begin now.