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Term limits could benefit Supreme Court

by GABE ROTH Special to the Democrat-Gazette | May 1, 2016 at 2:19 a.m.

Arkansans are remembering the life and service of Ray Thornton, a six-term congressman and former state Supreme Court judge who died recently at the age of 87.

Nationally, Thornton is also remembered for fighting a ballot initiative to limit the number of congressional terms an individual could serve, a fight Thornton took all the way to the Supreme Court (and won in 1995).

With a strong populist sentiment afoot nationally, citizens have once again turned to the idea of term limits as a way of curtailing entrenched power in Washington. While a number of proposals for limiting congressional terms have been floated, none acknowledges, as Thornton did, that members of Congress may be term-limited by their constituents, who can simply vote them out.

The Supreme Court, however, is a different story.

With paralysis in Congress and between the legislative and executive branches, the high court has arguably become the most powerful part of our government. It is also the least accountable, as the justices have weaker ethics rules than other federal judges, are not required to put their financial disclosures online like other top government officials, and hide their "public" hearings from the vast majority of the public. They can even get around reporting who pays for their frequent travel.

At the same time, the nine (or eight) justices may serve for life, and no justice in our nation's history has ever been removed from office. In the last few decades, the average tenure has nearly doubled, from less than 15 years per justice before 1970 to more than 26 today. That Chief Justice William Rehnquist, who died in office, served for 33 years or that Justice John Paul Stevens (who stayed on the bench until age 90) served for 35 is likely not what the framers intended when drafting our founding document.

The recent passing of Justice Antonin Scalia, tragic as it was, is a unique opportunity to talk seriously about ending life tenure at the Supreme Court.

Look at what it has wrought: a likely year-plus vacancy. This is not to say one side of the debate over filling Scalia's seat is correct; rather, there should be a more thoughtful way to ensure the court is operating at full strength. The death of a 79-year-old in poor health should not wreak undue havoc on the institution.

Luckily, there is a solution. Democrats and Republicans and legal scholars from both ends of the ideological spectrum support enacting a single 18-year term for the justices.

Eighteen-year terms would mean, once fully implemented, that a new justice would be added to the court every two years, which would bring needed predictability to the confirmation process. Justices would no longer wait to retire until a like-minded president was in office, another factor that has lengthened tenures unnecessarily in recent years. Plus, 18 years is enough time for a justice to author a number of major decisions and leave his or her mark on the law, but not so long as to be oligarchic.

There is some debate as to how Supreme Court term limits could be accomplished, whether by law or by amendment. (I believe a statute that would allow the justices to remain on the federal bench for life--only 18 years of which could be served on the high court--would pass constitutional muster.)

Constitution-era wisdom is not absolute, which is why the document has been amended 27 times since it was ratified, and why the framers would likely look down upon the overarching power now held by nine unelected Article III officials. Also not absolute, for that matter, is the wisdom of the justices who decide to stay on the bench past their prime--and, in some cases, well past when they start to lose their cognitive abilities--thus doing great harm to the institution.

Ending life tenure at the high court solves these problems. Different from term-limiting Congress, which Ray Thornton rightly noted could be done by ballot, term-limiting Supreme Court justices would rein in the power of the most powerful, least accountable part of our government and rightfully return power to our elected branches.

Gabe Roth is executive director of Fix the Court, a national nonprofit that advocates for a more open and accountable U.S. Supreme Court.

Editorial on 05/01/2016

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