Justice Thomas has had almost 35 years to build up a record of bad behavior, including the acceptance of more than $2.4 million in “gifts” since 2004 and the refusal to comply with simple disclosure requirements. During his 20 years on the Court, Justice Alito has become increasingly arrogant, politically motivated and intolerant of sound jurisprudence. Chief Justice Roberts has done his level best during his almost 21-year tenure to remove all limits on campaign contributions. He has consistently resisted efforts to place reasonable ethical restraints on the Justices.
All of this has resulted in an historic drop in public confidence in SCOTUS, which constitutes a serious danger to the rule of law in the United States. These longest-serving Justices make a compelling case for dramatic reforms to this vitally important American institution.
There are any number of things that Americans could demand to restore honesty, competence and impartiality to SCOTUS but many of them–a rational appointment process and an enforceable ethics code–are unlikely to happen with the current make-up of Congress. However, a SCOTUS term limit, which has strong public support and might help keep the Justices from misbehaving, would be a great place to start. Recent polling indicates more than 70% public support for term limits for these unaccountable officials.
There has been an increasing tendency of Presidents to appoint people in the infancy of their legal careers in hopes they will serve until they draw their final breath--sort of a cradle-to-grave system. By removing the incentive to appoint youngsters who would serve until they die, a term limit would likely result in the appointment of older, tested, more-experienced lawyers or jurists. Some of the most qualified lawyers and judges are effectively excluded from consideration simply because politicians want appointees to serve as long as possible. The last four SCOTUS appointments were ages 49-51.
Some term-limit naysayers tell us the US Constitution calls for the lifetime appointments of SCOTUS members. In other words, Justices may serve throughout their entire lifetime unless they commit some sort of serious infraction. However, there is an easy answer. Don’t limit their tenure, but merely change their status from full-time active Court members to “senior” members once they have reached the term limitation. Many states, like Idaho, provide that a cadre of senior justices can fill in when an active justice recuses on a case. Senior justices also participate on court committees and help with proceedings in the state’s lower courts.
Congress can and should enact legislation to limit SCOTUS members to a maximum term of active service of 15 years and then switch them to senior status where they could remain as long as they wish. That would give SCOTUS a group of senior Justices who could step in and serve by random selection when an active Justice recuses on a case or is unable to act because of illness or whatever else. The senior Justices could also be deployed to reduce backlogs in crowded US Circuit Courts of Appeal around the country, as well as serving on various Court committees. The senior Justices would still receive full pay while continuing to provide service beneficial to the court system. That would be a small price to pay for the substantial benefits to be received.
It is time to end the system that fosters a cradle-to-grave SCOTUS membership. A term limit would open up the possibility for older, more experienced lawyers and jurists to serve on the high Court. Presidents would no longer have an incentive to pick less experienced youngsters to serve for numerous decades. There are too many well qualified individuals who would be a real credit to SCOTUS and the rule of law, were it not for the sad fact that they are deemed ineligible because of their age. Periodic turnover would be a good thing. The longer a Justice sits in the ivory tower of the Court, the greater the likelihood of losing touch with the real world.
The US Supreme Court (SCOTUS) has certainly been remaking the American legal landscape in recent years, but not in a good way. The GOP majority has just finished gutting the Voting Rights Act of 1965, has allowed billions more to be spent on political campaigns, and has given a green light to political gerrymandering. The majority seems to regard itself as an unaccountable super legislature. It may well be.