Resolved: United States Supreme Court justices should be subject to term limits.

Topic Analysis

Written by: Duncan Stewart The University of Utah

Resolved: United States Supreme Court justices should be subject to term limits. In June 2005, at the end of its October 2004 Term, the U.S. Supreme Court's nine members had served together for almost eleven years, longer than any other group of nine Justices in the nation's history. Although the average tenure of a Supreme Court Justice from 1789 through 1970 was 14.9 years, for those Justices who have retired since 1970, the average tenure has jumped to 26.1 years. Because of the long tenure of recent members of the Court, there were no vacancies on the high Court from 1994 to the middle of 2005.- Steven Calabresi - The Resolution in Simple TermsIn recent years discourse in federal courts has been rife with term limit talks. Currently all Supreme Court Justices enjoy lifetime appointments contingent on good behavior, justices may be impeached on the grounds of high crimes and/or misdemeanors. In application justices effectively tenure lifetime appointments or retire by stepping down. The advantage of which is that they're insulated from the political process. The removal of justices from the political landscape is the basis of American check and balance within government. From this place of tradition is where most of the debate will be framed. The overarching claim being that, it is necessary to remove justice(s) from the political process if it is to be fair and true justice. The disadvantages: it inspires presidents to appoint younger, less experienced judges than they might otherwise appoint, and it inspires justices to stay on the bench long after good sense would have them retiring. In 1991 Virginia state law ruled in what was characterized as the dangers of age 70 that: "that the threat of deterioration at age 70 is sufficiently great, and the alternatives for removal sufficiently inadequate, that they will require all judges to step aside after the age of 70. Thus, there is a pull of age, too young or too old, and you are no longer qualified. The debate however, extends far past age. It is a foundational political question; should the judiciary be involved in the political process? Those agreeing argue a term limit of justices of the highest federal court is an extension of democracy. In reformation control of the courts will have a new semblance of power to the people, if there are term limits it will, in probability, give way to a new election/appointing process of justices. The most popular idea pursuant article five of the constitution is an amendment to article three. This is proposed by Steven Calabresi and James Lindgren to provide term limitsthe most commonly discussed limit is 18 years. Another proposal is a structural change. It would entail adding a new justice every two years. That is two new federal judicial appointments a presidential term. Linda Greenhouse summarized it best in an article appearing in Slate: There are a number of rationales for ending life tenure. For me, the main one has little to do with the court itselfI don't think age or decrepitude is a major problem, and I would sign John Paul Stevens at 92 up for any task I could think ofbut rather with court-related politics. Since Supreme Court vacancies occur so randomly (Carter with none, Nixon with four), each vacancy is a cataclysmic event for which the president's and Senate's business basically comes to a standstill. With the twice-per-term vacancies that the 18-year term limit would deliver, everyone would know that their party would have its share (assuming they could elect the right president) and it might lower the temperature surrounding each vacancy. People would vote for president knowing for sure, rather than in the abstract, that they were also voting in effect for two Supreme Court justices.

The value which will be heard on both sides of this debate is that of justice as it is the courts purpose. That is the justness of the Supreme Court, and creating the court which will yield the most justice. The debate will come down to the means of achieving that, your criterion. A few of which are: 1. Representative democracyThis criterion is to be run on the affirmative side of the debate. People can effectively elect the justices they wish to see in the court. In the broadest sense representative democracy is the ideal that an elected person should represent a group of people, and that the elected person is accountable to the electorate. Currently the appointment of justices is random because vacancies are random. Which the affirmative can argue is destroying the representative democratic process, thus term limits build representative democracy. The criticism for the negative: Involving the judicial branch in the political process of identification is a dangerous line as it would subsequently involve short term appointments. Meaning political goals would also be sought short term, this combined with evidence of political corruption would prove an ineffective court. Well carded argumentation such as this will make it difficult for the affirmative to achieve their value of justice. 2. Checks and balances This criterion is to be run on the negative. Your argument is the only way in which the court acts as an effective check is when it is aside the political spectrum. It will prove relatively easy to find a plethora of evidence articulating the courts involvement in frequent vacancies will: first politicize it, but second corrupt it. If a justice is sure of their seat, they are free to vote based on their judgment rather than party lines. Fear can sway a decision a certain way. The judicial branch checks the executive and legislative because it is not up for re-election. It is insulated from both public opinion and politics. At the point where this is no longer true your opponent is in trouble two fold. 1. The court is now ineffective, or less effective they loose the debate as this mitigates justice 2. The court is less of a check on the executive and legislative branches, poor laws are made. This mitigates justice. Game over. (These considering Justice is the value, and is impacted well) The criticism for the affirmative: The representative democracy which a continual vacancy would foster will act as a greater check against the other two branches. The Judiciary would still have the same powers plus representation. 3. Governmental Legitimacy You will probably hear this criterion the most frequently. It may even be used as a value pretty commonly; indeed the resolution is a fundamental question of what is and what makes a legitimate government. This can be approached from several different places. The first being the social contract, either Hobbes or Locke, it depends on how you wish to approach the debate. The second being democracy, that a legitimate government involves representative democracy. This is where governmental legitimacy and representative democracy can be interchanged as a value or criterion; it depends on what you see to be the most strategic option. -Key Terms and Definitions1. The United States Supreme Court is the judicial branch of the United States government. It is composed of nine justices, one of which is the chief justice. Justices are elected by presidential nomination and senate confirmation, serving a term of life. The constitution of the United States 3

2. 3. 4. 5. 6. 7. 8. 9. 10.

doesnt explicitly give the court the power of judicial review; however it is a concrete precedent. ( Marbury v. Madison 1803) Tenureliterally means to occupy permanently or to posses a permanent post. In this debate it refers to the seats which the justices hold. Term Limitthis is what the resolution proposes; the term limit will be the allotted amount of time a justice is allowed to occupy a seat. Vacancyoccurs when a justice retires or dies leaving a seat open for presidential nomination. Article 5of the constitutions allows it to be altered. Article 3is the portion of the constitution which establishes the judicial branch of the federal government. It allows judges to hold their offices during good behavior, this interpreted to mean life. Justice and Justicea judge on the Supreme Court bench is referred to as a Justice; please dont confuse this with a common value in the debate. Representative Democracythe elector and electorate have a direct relationship. The latter is accountable to the first. (see the criterions) Checks and Balances gives unique powers to each of three branches of government to equalize power-- (see the criterion) Governmental legitimacythe question of whether a government in its current state is justified in having its power exercised. (see the criterion) -Case Ideas/Strategies-

1. The Affirmative. A. Age - Detailed in a recent article by Professor David Garrow, the advanced age of some Supreme Court Justices has at times led to a problem of mental decrepitude on the Court, whereby some Justices have become physically or mentally unable to fulfill their duties during the final stages of their careers. It is a legitimate argument for the affirmative to say that lifetime tenure is: First harsh on judges of old age, but worst it leaves them incapable of performing their tasks, or they perform under impaired judgment. A commentary in The Boston Globe presents a commentary on the subject which highlights that there has been some troubling examples throughout the recent history of justices who simply are no longer up to the task. What's troubling is some of this information only came out after the justice in question died or retired. I can't help but wonder how many important decisions were made by law clerks or, worse yet, by justices who no longer had complete control of their mental faculties. B. Democratic Ideals. - Following the retirement of Justice Sandra Day OConnor in 2005, five of the nine members of the court had served together for seventeen years, three of them sitting on the bench together for the past 22 years. This position will argue that the constitutions granting of lifetime tenure is fundamentally flawed because it reduces the efficacy of the check that the nomination process 4

enforces on the courts membership. This happens because there is less and less vacancies appearing in the court. Further, The increase in the longevity of Justices' tenure means that life tenure now guarantees a much longer tenure on the Court than was the case in 1789 or over most of our constitutional history. Moreover, the combination of less frequent vacancies and longer tenures of office means that when vacancies do arise, there is so much at stake that confirmation battles have become much more intense. (Lindgren, Harvard Journal of Law) With the amount of power that Supreme Court justices now hold, it is unwise, in a framework of democracy, to let it go unchecked for decades. In some cases decades shy of half a century. It may have been sensible in the time of the Founders when life expectancy was below the age of forty. The federalist papers which addressed the court intended the judicial branch to be the weakest branch of the government. Today it is the most powerful; nine people are the final arbiters of legislation and governmental action. Your argument will be currently these people are unchecked by the other two branches of government. Further, The Supreme Court has become highly politicized over recent years, thus tanking democratic values. By no means does lifetime tenure help this. Political motives [have become] a more important factor in Justices' retirement decisions, which could have resulted in their deciding to stay on the Court longer for strategic reasons. While it has always been recognized that the Court has had some influence on politics, in the last fifty to eighty years the Court has come to be seen as a more important player than ever before ie effectuating political and social change. As a result, the political views of individual Justices have become correspondingly more important. To sitting Justices contemplating retirement, the political views of a likely replacement (and hence those of the presiding President) may lead to their timing their resignations strategically. Such strategic resignations may have led more politically minded Justices to stay on the Court longer and later in age, which has expanded the real-world, practical meaning of life tenure. Such a politic disallows the equal distribution of party representation, and therefore the Supreme Court is yet again unchecked. A justice will resign when their party controls the white house. Thus it works in a cyclical matter. First Judges live longer, second they are more powerful than ever before, Third they retire strategically, and thus remain unchecked. Term limits would break the cycle and that is the affirmative argument. 2. The Negative. A. Insulation from the Political Process. Currently Justices enjoy lifetime tenure; this ensures insulation from the political process. Term limits will enter the Supreme Court into the political arena as products for legislative goals. This can be argued to destroy the justice of the Justice system; this would open the court to lobbyists and party lines to become further rooted in its process. In addition most career politicians dont discontinue their involvement in the political process until actual retirement. Thus a justice would have to have future careers or jobs in mind while making decisions between state dispute and legislation. Here is where the debater argues that the given Justices decision will be influenced by future employers and/or constituents. B. Court Back Logs

If the internal link to democratic ideals is having a voice in the political process, then the Supreme Court term limits hurt that. This is because; Supreme Court appointments are highly political. Federal, but not Supreme Court, Justice Robert Bork an attempted supreme court appointee was debated for over a year, and prevented anything else from getting done in the Senate. Since 2011, there have been judicial emergencies all over the country, meaning that there were a large number of cases that had not been heard. There are currently not even enough judges to handle cases, and every time we attempt to move someone into the Supreme Court, all other appointments are pushed off more and more. (The crux of your argument.) With carded evidence to support this argument you can argue voices arent heard, democratic ideals are decreased, hindered, and haltered, i.e. values arent achieved and opponents loose. Further, appointments often come from current judges, meaning that once they are appointed to a higher court, their old seat must be filled. The senate will often use the filibuster in order to prevent a candidate that doesnt meet their ideals from being appointed. This can go on forever in a highly split congress like ours today. This means every time we attempt to promote a new justice, they are debated for an extended period of time. This greatly differs from the first appointments by George Washington which took around a day. In a world such as this values on the negative could be argued in terms of a legitimate government. If a legitimate government supports democratic ideals, that are a multiplicity of voices in the political process, and term limits decrease this, you win a negative ballot. C. Political Consequence and Spillover This argument overlaps quite a bit with the others. It functions on the basis that continual appointments to the Supreme Court are a regular part of the partisan political culture. Public perception is negatively impacted when there is opportunity to make a political problem out of court appointments. That being when a term of a senator ends, there must be another appointment immediately and, depending on term length, there are many more chances for a partisan legislature to delay and negate a president's wish for justices. This creates further backlog as well as introducing politics to the sphere of nonpartisan justice. Arguments exist to describe how people will reinforce themselves with their party more than logical rationale, therefore having debates over the Supreme Court much more often will require people to be inundated in the process, limiting the critical thinking that goes into making decisions which are important to the well-being of the US citizenry. In the current process, Senators must account for the experience, ability, nonpartisanship and longevity of a Justice while in a system where the mentality becomes, "This will only last for two (or some) years," every time there is an appointment, the debate is the same and we continually are appropriated partisan justices because of the devolving nature of debates into arguments over personal ideologies. A past "what if" could be seen in the decision on the Affordable Care Act. Justice John Roberts surprised the country with his vote because he is traditionally seen as conservative, but voted based on his interpretation of the constitution, wider than the politics that surrounded the issue. A more politicized and partisan branch of the government is not what we need, nor would it have beneficial for the Supreme Court debates, regardless of the current or possible decision. This argument combined with a value of checks and balance or the legitimacy of the political/constituent process would make an effective case. The weaknesses of this however is its a confusing argument, may not have a strong link, but does give a basis which I predict what most cases will have a semblance of.

-Sources and Points for Research1.http://hive.slate.com/hive/how-can-we-fix-constitution/article/the-18-year-bench 2.http://www.motherjones.com/kevin-drum/2011/09/term-limits-supreme-court 3.http://www.news.cornell.edu/chronicle/05/1.27.05/Cramton_supremes.html 4.http://voices.washingtonpost.com/postpartisan/2010/04/term_limits_for_supreme_court.html 5.http://lsolum.typepad.com/legaltheory/2012/03/sharma-glennon-on-supreme-court-term-limits.html 6.Calabresi, Steven G. Lindgren, James Harvard Journal of Law & Public Policy, Summer2006, Vol. 29 Issue 3, p669-877, 109p

7.See Steven G. Calabresi & David C. Presser, Reintroducing Circuit Riding: A Timely Proposal, 90 MINN. L. REV. 1386, 1392-99 (2006). 8. BRUCE ACKERMAN, THE FAILURE OF THE FOUNDING FATHERS: JEFFERSON, MARSHALL, AND THE RISE OF PRESIDENTIAL DEMOCRACY 195-98 (2005).
9. THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 251, at 465