Fixed Terms for Justices Will Not Fix the Confirmation Controversies
Michael J. Broyde
This article is part of our “Notorious ACB: Law, Religion, and Justice Barrett’s Ascent to the Court” series.
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At every confirmation of a Supreme Court Justice, inevitably, commentators appear advocating 18-year term limits for Supreme Court Justices, under the assumption that regular and scheduled appointments will solve the confirmation battles. This approach is mistaken: while there may be advantages (and disadvantages) to Supreme Court term limits, even if term limits were imposed, we would still face similar confirmation battles.
Before discussing the confirmation problems, it is worth focusing on term limits for Justices. What is right is with term limits is obvious: each President would be given two appointments for every four-year term in office, which would fairly distribute judicial appointments. However, four issues readily arise from term limits as well. Most importantly, many Justices have written landmark opinions in their last years in office – for example, both Justices Scalia and Brennan wrote their best opinions many years after the proposed 18-year mark. Depriving our nation of its best justices when they are most seasoned seems unwise at best. Second, having a cadre of youthfully retired Supreme Court Justices practicing law at law firms would be quite problematic, as they would provide insider access, creating a rotating door between the Supreme Court and business. Third, one should worry that Justices in a term limit model will become politicians after their 18-year term expires, resulting in Justices thinking politically on the bench in anticipation of running for future office. Finally, it is reasonable to think that judges at the end of their term would start looking for new jobs and may be biased in their decisions in favor of probable employers. In short, the price for changing the current policy of Justices working until retirement due to old age could be high.
But, more relevantly to our present problem, term limits would not solve the current confirmation fights. Would Justice Amy Coney Barrett serving “only” 18 years cause anyone who opposes her appointment to support it? Of course not! Rather, our current problem stems from three overlapping realities. First, Supreme Court Justices play a crucial role in our society: the position of Supreme Court Justice is among the most important jobs in the nation. Second, each Justice decides matters quite differently: from originalism to a living constitution and much more, each Justice has their own approach. Third, Justices serve for a very long time, so the impact they have is measured over decades, unlike most politicians. Simply put, being a Supreme Court Justice is an important job with a great deal of discretion and tenure to it. This has produced the problem – going back to President Reagan and maybe even Johnson – of it being extremely difficult to confirm a Justice when the President and the Senate are controlled by different parties.
Three solutions to our confirmation controversies are worthy of consideration but fall short. The first is to make the Supreme Court far less important, by creating an override clause allowing Congress and the President to pass laws that overturn Supreme Court decisions even on Constitutional matters (common in many democracies). The second is to make Supreme Court appointments much less political by moving to a civil service model: for example, elevating whomever is the most senior chief judge of any of the Courts of Appeals to be a Justice when a seat opens. The third is to explicitly recognize the Supreme Court as a partisan organization and regulate it like we do many such agencies: the Supreme Court would have four Republicans, four Democrats, and one Independent. Each party would appoint four Justices, and the independent Justice would be nominated by the President and confirmed by an 80% vote of the Senate to ensure bipartisan support.
Each of these models would – in different ways – allow for a smoother confirmation process. However, they would do so by diminishing the democratic element of selection, harming the Supreme Court’s long term legitimacy. All of them seem unwise.
Further, such models would presuppose that a Justice’s opinion can be predicted based on party lines, when that notion is debatable. Consider, for example, the politics of religious freedom in America. Constitutional law in the United States is much less protective of religious liberty than most assume, in part due to Employment Division v. Smith (1990). Justice Scalia, writing for himself and Justices White, Steven, Kennedy, and Chief Justice Rehnquist, ruled (5-4) that generally applicable laws (such as that all surgery needs to take place in a hospital and be conducted by a surgeon) need not have an exception for religiously motivated conduct (like religious circumcision). This decision means that religious communities frequently need legislative permission to get statutory exemptions to protect their religious rights from neutral laws that impact them. Notably, the concurrence and dissent by Justices O’Connor, Brennan, Marshall, and Blackmun show much greater deference to general religious exemptions from the law – i.e., the “liberal” Justices sought to provide greater protection for religious rights than the “conservative” Justices. Religious freedom would be far more protected in America, then, if in 1990 there had been one more Justice more closely aligned with Brennan than Scalia.
Where does Justice Amy Coney Barrett fall on this matter? While widely marketed as following in Justice Scalia’s footsteps (she clerked for him and has expressed her comfort with his intellectual approach at confirmation), she is also viewed as a protector of religious freedom — which is certainly not the holding of Justice Scalia’s single most important law and religion decision. What can be drawn from this is that predictive attribution of putative holdings in the field of law and religion is complex.
Politics in a democracy is messy. Judge Bork – whom all agree was very competent — was ‘borked’ by the Senate, while Judge Garland – also very competent — was ‘garlanded.’ That is how democracies work: The Senate sometimes denies confirmation to competent people whose judicial approach it disagrees with and sometimes even refuses to hold hearings. Nor is this a modern problem: in 1968, as President Johnson’s term was ending, the Senate filibustered the promotion of Justice Fortas to Chief Justice, allowing a Republican president to select the new and much more conservative Chief Justice. Every Chief Justice since that fateful filibuster has been selected by a Republican President.
Some Presidents, sensing their own weakness – or being shown it by Senatorial rejection of their initial nominations – nominate people not exactly of their own ideology but confirmable by a Senate controlled by the opposition party. President Reagan did this after two of his candidates were not confirmed by the Senate. He nominated Anthony Kennedy as his third choice, whom everyone knew was much more moderate than Bork would have been. President Ford did this when he nominated Justice Stevens, and President Obama could have done the same in 2016. Indeed, Presidents can even consult Senators before a nomination, if they wish.
The confirmation process is not broken at all: it is working exactly as it was intended. The nation is sometimes divided, but that does not mean the process is at fault. Justices are appointed through a political process that works smoothly when the President and the Senate are controlled by the same party and is a much bumpier ride when they are not. That is proper government in a democracy where one of the bulwarks against tyranny is divided powers.
Naturally, as any nation becomes more polarized, it is worth looking for ways to reduce the vitriol — but that needs to be done without reducing the democratic checks we have placed on unilateral power. Term limits hardly address the real and important problems of polarization and will not solve the confirmation controversies. ♦
Michael J. Broyde is professor of law at Emory University School of Law, a senior fellow and projects director at the Center for the Study of Law and Religion at Emory University. He is a professor at Emory’s Tam Institute of Jewish Studies, and was last year a Fullbright Scholar at Hebrew University and visiting professor at Stanford Law School. His primary areas of interest are law and religion, Jewish law and ethics, family law, and comparative religious law.
Broyde, Michael J. “Fixed Terms for Justices Will Not Fix the Confirmation Controversies.” Canopy Forum, December 22, 2020. https://canopyforum.org/2020/12/21/fixed-terms-for-justices-will-not-fix-the-confirmation-controversies