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Thomas Jipping & Damon Root: Should Supreme Court Justices Have Term Limits?
00:28:18
On this episode of Future of Freedom, host Scot Bertram is joined by two guests with different perspectives on the subject of term limits for U.S. Supreme Court justices. First on the show is Thomas Jipping, Senior Legal Fellow in the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom. Later, we hear from Damon Root, a senior editor at Reason and the author of Reason's semiweekly Injustice System newsletter. You can find Thomas on X at @TomJipping and Damon at @DamonRoot.
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Foreign.
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Welcome to Future of Freedom. I'm your host, Scott Bertram. Future of Freedom is a production of Franklin News Foundation. To support this show, go to franklinnews.org donate we bring you interviews today from different sides of the conversation about term limits for Supreme Court justices. In a little bit, we'll be joined by Damon Root, senior editor at Reason and author of the Injustice System newsletter. First, we talk with Thomas Jipping, senior legal fellow in the Edwin Meese Institute for the Rule of Law at Advancing American freedom, more@advancingamericanfreedom.com he's also on X omjipping. Tom, thanks so much for joining us.
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Thanks for having me.
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Talking today about the discussion around term limits for Supreme Court justices. Tom, those in favor often say it's necessary because the court is now too political, too polarized. Is that a problem, and do you think that it's a problem that needs to be corrected?
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Well, usually language like that is a substitute for actually saying, I don't like some of the court's opinions. That's true. At any particular time in history,
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there
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have been times when the Republican and Democratic appointees have been in the other ratio. So I'm not sure what polarized means. If we think in terms of problem and solution, if the solution is to define their terms, what must the problem be? The only thing I can think of from sort of a common sense angle is that the length of their terms is the problem, otherwise there would be some other sort of solution. And of course, the length of their terms is no problem at all. It was actually deemed important from the very start. The Declaration of Independence is going to be 250 years old, and there's actually a couple of items on the list in the Declaration as to why we had to declare ourselves independent. That had to do with the king trying to control the judiciary. And one of them was that their terms of office were up to his discretion, which is why they put in the Constitution that federal judges, all federal judges, can serve until they choose to leave or until they're removed by impeachment. That was a critical component of keeping the judiciary independent institutionally, and I don't see any change in that. Nobody that I'm aware of makes an argument that the reasons we put that in the Constitution have changed and therefore it ought to come out. So as far as I'm concerned, it's a solution in search of a problem. Everybody, everybody can name decisions they don't like now and then, but I just don't see how the problem of how any problem needs the solution of compromising the independence of the judiciary.
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You mentioned there might not be a reason to change. I think others might argue that. Did the Founders envision that perhaps Justices would serve as long as they do today, 25 years, 30 years? Is there any reason to think that knowing that a lifetime term would mean upwards of potentially three decades on the Court would have changed the Founders opinions?
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Well, some of the longest serving Justices in American history were in the Founding era. I mean, John Marshall, Joseph Story, they served. They're in the top 10 of the longest serving members of the Supreme Court. The Bushrod Washington, I think he was appointed by George Washington himself. He served over 30 years. So they certainly knew that it could mean very long tenure. If you look at the proposals for term limits, the most common I think is maybe 18 years or 47 justices in American history that served longer than 18 years. So again, the problem is not the length that judges would serve. The Founders wanted to take not just to protect judges from being arbitrarily dismissed, but they also wanted to take the institutional factors, like when there would be vacancies and those sort of things out of political hands and put them in the judge's own hands. That's exactly what they did. And there's no reason to change to that point.
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Again, an argument goes that it would make more sense for each President to get a certain number of vacancies to fill. That would depoliticize the process, perhaps make the openings much more scheduled and less random based on, as you point out, a Justice's preferences. Would that do anything to depoliticize the Court, to lower the temperature in some of these discussions and arguments about new Justices?
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No, it would do the opposite. The courts generally, and certainly the Supreme Court is much more powerful than the Founders of our country intended and designed it to be. And that's the reason why we've had huge conflicts over the appointment of Supreme Court Justices and even many lower court judges. If the political forces that have fought these conflicts, if they know when a particular justice is going to leave, that just gives them more time to plot and scheme and prepare and strategize. I don't think that's going to lower the temperature at all. Knowing exactly when a battle is going to have to be fought, I think can only raise the temperature. I've been involved in the confirmation process in one way or another. I spent 15 years on the Senate Judiciary Committee staff, for example. I've been involved in that space for over 35 years. I am absolutely convinced that if, for example, an 18 year term limit were imposed over time, that would increase the number of presidential nominations. It would increase the number of times the Senate has to deal with a presidential Supreme Court nomination. I would practically do anything to avoid increasing the amount of these sorts of conflicts that we've seen in recent years. It will not tone down. The stakes are still high. It would not tone down the temperature. It would only increase the number of conflicts and let the combatants know exactly when they have to run onto the field.
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As I hear you speak, Tom, I think a little about the conversation about redistricting where people say let's do this, let's do that, let's take politics out of redistricting when it is an inherently political process. Is the argument similar for Supreme Court? As much as you try to depoliticize it, this is a political argument in the end.
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Well, there are political actors who are involved in appointing judges. The Constitution says the President nominates and the Senate must approve. The President and the Senate are political actors. That doesn't make it a political process. Whether it's a political process, that is whether the President or the Senate chooses to make their nomination and confirmation decisions based on political rather than legal or constitutional factors. That's a choice they have to make regardless of how the actual process works. And besides, redistricting is, is changing congressional districts, in other words, changing how we elect political leaders. So judges are not political leaders. They're not supposed to be and we shouldn't treat them that way.
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B
Tom, in an essay you wrote recently, you point out that the number of five, four cases, the very slim majority cases, actually is fewer than in recent years. And the voting coalitions don't always fit, fit into the narratives that perhaps we hear. Is that some evidence that we maybe put too much emphasis on which president necessarily appoints a justice?
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Sure. And also you can look at. There are some actually pretty well known examples. I'm thinking in terms of it, it may be a little bit apocryphal, but for example, President Eisenhower is said to have identified his two biggest mistakes as sitting on the Supreme Court. Those being Chief Justice Warren and Justice William Brennan, who no doubt turned out radically different than the President who appointed them intended. So that happens all the time. But you see, that's part of why we need an independent judiciary. So that these things aren't necessarily predictable and planned and, and the political forces can't necessarily manipulate what is supposed to be a legal process. I mean, we need to depoliticize, certainly, but putting political factors more into the process of selecting Judges, which is what term limits would do is not the answer.
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The court has gone through periods of controversy before New Deal era, the Warren Court. Do you think that this term limit debate is any fundamentally different than past controversies or simply another example of some being frustrated when the Court just reaches decisions they do not like?
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There's a number of what are sometimes called Supreme Court quote, reform ideas. Term limits is one, court packing is another. They really are in the same category. And as we said at the top, I simply don't, I honestly don't know what is the problem that needs to be solved with term limits. That being the case, if you. The only thing I can conclude is that this is a, this is one of a number of ideas that people who don't like the decisions that the Supreme Court has made to get certain justices off the court so that perhaps we can get ones we like better. Well that was exactly what motivated Franklin Roosevelt when he proposed court packing in the 1930s. Both Democrats and Republicans rejected that then for a simple reason. It would compromise the independence of the courts. Unless there is a problem that term limits can solve. I think we should stop the pretense that this is some kind of objective evaluation of the needs of the Supreme Court and stop trying to politicize and manipulate the Court to our liking.
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One problem that again some advocates of term limits would point to is a loss of public confidence in the Supreme Court. And there are various polls that I know say various things. If there is a belief that the public is losing confidence in the Supreme Court, losing confidence in its independence, is that a, is that a matter that policymakers should be concerned with even if they believe those perceptions are mistaken?
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Well, sure. The support and confidence from the public is really the key to the judicial branches legitimacy. The famous formula is the courts have neither force nor will. I think Alexander Hamilton described that in Federalist 78. The Congress can spend, the executive branch can fight, judges have to persuade. So certainly. But I think we need to look candidly at what are the factors that have led to this level of public scrutiny, public dissatisfaction, however you want to phrase it, it's certainly not the length of their terms. So again we're back to what problem needs term limits as the solution. And I honestly don't know the answer.
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Thomas Jiffing is senior legal fellow in the Edwin Meese Institute for the Rule of Law at Advancing American Freedom. You can find more@advancingamericanfreedom.com and he's on X omchippin. Thomas, thank you much for joining us here. On future of freedom.
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Thanks for having me.
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Now to hear another side in this conversation about term limits for Supreme Court justices, we talk with Damon Root, senior editor at Reason and author of their Injustice System newsletter. You can find him on xamonroot. Damon, thanks so much for joining us.
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Thank you.
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Great to be here talking more today about the possibility, the idea of term limits for Supreme Court justices. You recently wrote, I believe it was part of the newsletter on the topic. And it's interesting because it's not necessarily an essay in favor or against term limits. What's the central point that you were trying to make recently over at Reason?
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Well, that piece came about after reading a New York Times op ed that made this kind of very confident assertion that Supreme Court term limits would not require a constitutional amendment, that Congress could just do it. And that, that, that just seemed, you know, sort of dead wrong to me against the original understanding of, of Article 3. And so that's, that's why I started writing it, sort of based on that. But then I did, I did say in the piece that, well, you know, I'm not they may be a good idea, but would require this, would require an amendment. And, but you know, I'm not opposed to them and I could imagine some upsides. So I'm not this is, I don't have a robust, you know, argument in favor of, of the term limits. But I guess one of the upsides that I was thinking of at first was in Supreme Court you have unelected judges, not just nine people. And that's, that's a lot of power. It's a lot of authority for any one person to have. And you may serve a justice may serve for 30 years, maybe, maybe even longer. And that's a lot of authority for someone, anyone in our political system to have. In the Supreme Court, of course, is at the center of so many of the most contentious battles, you know, and of our time, whether it's over economic regulation, over what people call the culture war, social issues, you know, you name it. Presidential power, the scope of presidential authority. And so that's a lot of authority for, for just nine, nine people to have. And so a little rotation in office didn't, didn't strike me as a terrible idea. So that's part of what I was thinking about. And then there's the mechanics of how you would do it. Let's say there is a constitutional amendment and term limits go into effect. The mechanics of how you do it can get a little complicated. But if it's something like staggered terms and one of the proposals I've seen is kind of every president would get one or two appointments would pop up during their term. So there's a sort of predictability and transparency. There's one of the arguments against that is that, well, that's just going to elevate the already kind of circus like insanity of the confirmation process. And it's, we're just going to sort of guarantee it. And I, you know, and I think that's, you know, in a way that's true. I don't disagree with that criticism of it. But at the same time, you know, I think the, you know, the horses left the barn on that. This is something, this is just a fact of our politics. It is much more widely understood than perhaps it has been in the past. How important judges the role, especially on the Supreme Court, but federal judges just in general, that kind of how important that job is, the kind of the important role it plays. You know, we also have a system right now. We have three branches of government. We have sort of two are kind of functioning at the moment that the courts are functioning. The executive is perhaps over functioning, doing too much and then Congress is not doing a lot. So it's sort of extra important when you think about the court. So it's already I think a, at something that's right at the center of our political life. And so that, that comes up regularly. You get some predictability. You also, you know, one of the things that President Trump did in running, running for his first term was he puts out this list. He said this is the list of judges that I'm going to choose from for Supreme Court appointments. And that was a very interesting thing. And something like that hadn't happened before. I think it probably got him some support from some conservatives, especially conservatives who came care about these legal issues. And so that kind of transparency in, in this process where presidents candidates are, are almost, you know, they're almost kind of campaigning on the Supreme Court already. And so it regularizes that. You know, I can, I can, I can see some upsides to that, I guess, is what I would say.
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All right.
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I want to ask about a couple of aspects of what you talked about, both on the argument side and the legal side. I guess I want to start with, with this which is do you, do you think that there is a problem with the Supreme Court and the way it functions now that necessarily needs to be solved? Should we actively be looking for a way to fix the Supreme Court? And you know, and then it terminates part of that, part of that conversation.
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That's not a, that's not a framing I would adopt when I, when I think about the Court, you know, I think the importance of the judicial branch is, or the, I should say the independence of the judicial branch is central to how I think about this and the importance of that. And I don't want to see that undermined. So you think of something like the kind of calls for what's called court packing, adding some justices. I'm totally opposed to that. Now that's something Congress could do, I think, without a constitutional amendment. The size of the bench is not set in the Constitution. So Congress could do that, be easier to do, but I think it would be much more destructive. That's very short term. If, you know, there was all these calls for President Joe Biden to pack the court from kind of liberal progressive groups and you know, to me struck me as very short sighted at the time because if Biden does that and then let's say Trump is then elected and there's a Republican Senate and Trump's going to pack the court and then right at this point we'd have, I don't know, 25 justices. You would, it would basically cease to be a, cease to be a, any kind of play. The role it's supposed to play is an anti majoritarian check on excesses by Congress, the President and then through the Reconstruction Amendments, excesses of the states. And so I want the courts to play that role. And so I don't want to be in favor of anything that's going to undermine that. And so I think a lot of this conversation around we have to fix the court is operating from a kind of a false, false assumptions or to my, my mind, wrong assumptions about what's, what's working and what not. People don't like a lot of Supreme Court decisions. There's a lot I disagree with. Also. I spend a lot of my time writing about my disagreements with the court rather than my agreements. But I want the court to play this counter majoritarian check on the other branches. And so I don't think that's something that needs to be fixed. And a lot of these calls for what they call, quote, unquote, reforming the court are this idea. Well, the court is actually, it's, it's checking the President too much or it's checking Congress too much. It's overturn congressional statutes when it shouldn't. There's all these, you know, so jurisdiction stripping, all these various kind of reforms that are proposed are all, to me, to my mind, undermining the central important role that the courts are supposed to play in our system. So I, so I don't think that there's something to, to, to be fixed in that kind of a broad sense. But I can see, like, I can see the argument that, which is, I'm just sort of repeating myself now, but that, that the, that the 30, 40 years on the bench, that much power, that's something that's in tension with some of the Democratic and Republican principles that are also throughout our system. So I can see that as a change that could be beneficial, but I don't know that there's some huge problem that is an urgent need of fixing there. I think the people's problem with the Court is, the problem that people have always had with the Court or with Congress or with the President is when it's in the hands of your political or ideological opponents, you know, you really hate it. You really, you wanted it, you want it to be different. But I, but that's, that's going to cut one way, then it's going to cut the other and it, and I don't know that that's a, that's a structural problem that needs to be fixed.
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All right, let's take a look at the legal aspect a little bit. Some Americans might assume that if Congress wanted term limits for the Supreme Court, they could simply pass a law. You said if they wanted a court pact, probably they could simply do that. But for this particular argument on termlets, you say the Constitution stands in the way. You got to amend the Constitution. Why do you think that?
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Well, what Article 3 says is that judges of both the Supreme Court and the inferior courts, lower courts, hold offices during good behavior. And that term, good behavior, that phrase that's been understood from the beginning to mean a lifetime appointment, that, that justices can be removed by, through the formal impeachment and removal process, but otherwise get to hold the jobs until they die. Die or retire, essentially. And that's, that's, that's the way that the, the, that the, that the courts, that the judges, the judges. Federal judge's role was talked about during the Constitutional Convention. Philadelphia. That's the way it's talked about, say in the Federalist Papers, you know, Federalist 78 by Alexander Hamilton. That's, that's kind of the. Go to Federalist paper. When you're, when you, when you want to think about the, the fr. Era debates about, about the, about the new Constitution and Hamilton, he contrasts. So he's talking about judicial independence and how important that is because there can be These pressures from Congress, there can be pressures from popular majorities, pressures from the president. And so a judge who holds an office in what he expression he uses is a temporary commission, well, they wouldn't be able to withstand this pressure. But then he contrasts that with the phrase the permanent tenure of judicial offices that's there in the Constitution to bolster the independent spirit in the judges. And so you think about temporary commission versus permanent tenure of judicial office. And I think that there's the only conclusion you can draw from those two terms is this lifetime appointment, which is how it's always been understood. And so again, that's the good behavior means all of those things and at least did to the framing generation. So if we're going to follow a kind of original meaning or original public meeting of the constitutional text there, then that means you need a, you need a constitutional amendment to change this. And the Constitution has this amendment process. You know, it's sort of, it's set in stone until it's amended. That's, that's the idea.
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Right.
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So there's no, there's nothing that would, that would prevent an amendment from going forward as long as it had the, had the support.
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B
You point out as well that Congress proposed a constitutional amendment on judicial termits back in 1807. Is that an important a data point in this discussion?
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Yeah, I brought that up as a sort of additional contemporaneous evidence of what the original understanding of the good behavior clause was. So there was the first proposal is for an amendment for term limit constitutional amendments in 1807 in Congress. So here you have, it's like two decades out from the ratification of the Constitution. And that was how members of Congress who would like to change the system, that's how they were thinking about it. Well, we have to do it by amendment. And that is, and that, and that's something that crops up again throughout U.S. legal history. And so it's this very new idea. Let me say that, well, Congress can just do it. And there's, you know, it has its proponents right now, I think they're wrong about that, about the history, at least as a historical matter. And if you, you know, if, but if the argument is a living Constitution argument, then this history wouldn't carry as much weight.
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What do you make of somewhat similar proposals that say we'll leave the justices on the federal Ben. But after X number of years, 18 years, whatever it might be, will move them off the Supreme Court itself. Does that genuinely preserve that life term that was talked about by the founders or is it an end around.
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I think that's, I would see that as an end around. I think that's a. You have the conclusion and then you're trying to work your way backwards to get the rationale for it. But the idea there is that, well, as long as there's still on the federal bench but are essentially in a kind of a senior status, they might hear, they might do some kind of judicial work but not be one of the members of the Supreme Court sitting on the bench. They're still holding their office during good behavior and they haven't really been forced out. I think that is contrary to, like I said, to what the original, original understanding would be. So it doesn't, it doesn't cut it. It's clever. I think that's a clever legal argument. It's attempting to get around this pesky, you know, constitutional language which doesn't, doesn't let you do what you want to
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do is your interpretation. Do you think one that is simply from an originalist perspective or one that would likely find support across the, the spectrum of judicial philosophies?
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Well, that's a good question. I think. I, I think it, it's, it's, it's coming from a kind of a text in history perspective. And so, so someone who's more, more interested in that or more sympathetic to that. I think that's would, would probably would hopefully would agree to agree with my assessment on in that way. If it's, if we're thinking about the Constitution simply as well, the best and the most pragmatic interpretation is the one that should be adopted. Or again, this idea of the living Constitution where it's got a, it's got a, it's written in broad capacious language for a reason and we need to be able to have a lot of, a lot of wiggle room, moderate to meet modern conditions, modern challenges. If you're looking at it from that point of view, I don't, I don't know that this, this sort of historical evidence will, will carry as much weight. And that's, that's a, and that's a very long standing division.
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Right?
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That's, you know, you see that in the progressive area. See that in the New Deal where there's, well, you know, like Franklin Roosevelt loses at the Supreme Court on Commerce Clause grounds in interstate regulation of commerce. And he says, well, the Commerce Clause was written in the horse and buggy era. You know, we need it, we need a different kind of understanding that keeps up with the times. And that's a, that's look, that's a venerable legal legal philosophy in our in our country at this point. Not not mine necessarily, but it's but it but it's there and so it's I don't I think they would look at people adherence to that view would would look at this differently.
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Damon Root is senior editor at Reason. You can find more@reason.com he's also author of their Injustice System newsletter. You can find them on X amonroot. Damon, thanks so much for joining us here on Future of Freedom.
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Thank you.
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We thank both of our guests for joining us. Thomas Jipping, senior Legal Fellow in the Edwin Meese Institute for the Rule of Law at Advancing American freedom, more at advancingamericanfreedom.com and on X omjipping and Damon Root, senior editor at Reason, author of the Injustice System newsletter. He's also on xamonroot. To find additional episodes of Future of Freedom, go to Apple Podcasts, Spotify, or wherever you get your audio. Thank you for listening to Future of Freedom, a production of Franklin News Foundation.