Lady Justice.

‘Till Death Do Us Part: Term Limits

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“Congress is too old, they don’t have a stake in the game.”

Representative Alexandria Ocasio-Cortez

Every so often, a news article or viral video circulates showcasing a supreme court justice or congressperson struggling with age related hardships. As of writing, the focus has been on Mitch McConnell, who recently froze during a press conference, seeming to have suffered from a medical incident, and Dianne Feinstein, who was confused about the proceedings of a senate appropriations committee meeting vote. When these viral “senior moments” happen, the topic of term limits always crops back up in the public discourse, with people fervently arguing for term limits, or people passionately defending their elected officials position in office.

The United States is the US is the only democracy with no term limits for judges. Similarly our congressional branch holds no electoral limits, meaning that any given congressperson can be re-elected to their position for life. As long as people keep electing aging politicians into congress, they will continue to hold their positions, regardless of age related illnesses like Alzheimer’s or dementia.

We have to wonder, in an era of radically evolving technology, rampant runaway climate change, and the ever-quickening tide of cultural movements, if we are doing future generations a disservice by allowing people nearing the end of their lives to legislate a world they will not live in. Can we really trust the judgement of people who won’t live to see the consequences of their actions while in office?

In many ways, even if age was not a factor worth considering, this is already the world we live in. Over half of congress members are millionaires, putting them in the top 5% of wealth holders in the country. Justice, governance, and legislature for the entire country is being run by the smallest, and often wealthiest, minority. If the democratic basis of government is that the government is of the people and by the people, who is really being served with the current structure? The average American? Or the politically advantaged ultra-wealthy? The wealth disparity between average Americans and their representatives combined with the fact that there are no electoral limits for congress gives way to a new class of people who write laws they are not or will not be beholden to. The ultra wealthy and powerful members of congress exist in a space of privilege and advantage that puts them above the consequences of their legislative actions, most of the time.

Additionally, there is the contrast of the executive branch, which has strict term limits. Any given president may serve two terms, and then can never serve again. Based on a combination of precedence set by early presidents and controversy surrounding presidents who didn’t follow tradition, the 22nd amendment limits the powers of the executive branch by restricting who can sit at the top and for how long. In a government set up to have checks and balances like the US allegedly has, the term limits for the executive branch combined with the lack of electoral limits for congress puts more power back into the hands of the House and the Senate. We saw this play out in the final months of President Barack Obama’s second term.

After the death of conservative Supreme Court Justice Antonin Scalia, President Obama nominated Merrick Garland to fill the position. Widely considered to be a moderate, Garland was thought by most news outlets and court reporters to be the most neutral available choice. Someone who wasn’t so left-leaning that he would scare the conservative majority in Congress, and someone who wasn’t so right leaning that he would compromise the views and beliefs of the Obama administration.

Then Senate Majority Leader Mitch McConnell, along with the remainder of the conservative majority in the Senate and the House effectively killed any possibility of appointing a new Supreme Court justice before the end of Obama’s second term. The unprecedented move stirred up controversy amongst Democrats and Republicans alike. Dems accused Republicans of holding the vacancy hostage until a Republican president could be elected, and Republicans accused Dems of putting politics over the voice of the American people.

Regardless of the political or ideological motivations for the move, the result is that Congress held more power over the President, which would either force the president to nominate a more conservative judge, or to simply do nothing until the next President came into power. The unanswered question then becomes “what would have happened if Hilary Clinton won the 2016 election”? Unfortunately, we cannot know how Republicans in Congress would have proceeded because President Trump was sworn in.

It turns out the strategy of holding out for a Republican president worked well for conservatives in Congress. In the eight years Obama served as president, he nominated 329 judges who were then appointed by Congress. In the four years Donald Trump served as president, he nominated and Congress appointed 234 judges. A 33% difference in confirmations over half the time. In the span of four years, along with the help of a Conservative majority in Congress for the first two, President Trump managed to appoint almost as many judges as President Obama appointed in eight years.

We can see that the term limits for the executive office gives significant power to the legislative branch, so what if we implemented similar limits or age limits for congress? Would that help? We can look at the presidency for examples. Each president introduces a plethora of executive orders, especially if Congress isn’t on their side politically. As soon as another party is sworn in as president, they spend the first portion of their executive agenda on undoing the executive orders of their predecessors. If congress had electoral limits, wouldn’t we end up in a similar situation? One majority congress passes laws that the next majority repeals. The possibility of political progress stagnating further than it already has because of partisan voting and petty lawmaking is a real threat to the very structure of democracy, especially as the world outside of government continues to relentlessly march forward.

So what are we to do about the apparent imbalance? Many pundits will argue that the solution is to have high voter turnout and voter engagement. People wouldn’t elect incompetent or malicious or aging representatives if the masses participated in the democratic process. And if younger people were more interested in politics, maybe there would be younger representatives. But this is neither a good solution nor an attainable one.

The very same lack of electoral and term limits in Congress allows for partisan gerrymandering, for voter suppression, and for changes to policies that we cannot fight without the help of other branches of government. Additionally, the effort needed for a newcomer in politics to gain the political backing and monetary support required for running for congressional office seats is difficult to achieve without immense amounts of privilege and luck.

When the rulebook Congress has to follow is written by Congress, the rules will be self serving. Being a politician at the highest levels of government is less of a public service and more of a job. As long as politicians continue to benefit from a lack of term limits, high barriers of entry, and systems of privilege and oppression, attainable solutions will remain a subject heavily avoided by people who stand to lose the most from them.

So what do we do? Are term limits for Congress a good idea? Or are they a recipe for political gridlock and class division?

These questions have no right or wrong answer, and even so, they are difficult questions to debate in an ever divided populace. The public forum grows larger and more divided with each electoral cycle and social media expansion. And we haven’t even talked about the Judiciary yet.

The Courts

“There are areas, especially in constitutional law I would say, where it behooves the court to move slowly, it behooves to the court to move incrementally, to make sure that the path that they are charting for themselves is in fact the right path” 

Chief Judge Diane Wood of the U.S. Court of Appeals 7th Circuit8

The judicial branch plays a crucial role in shaping the legal landscape – impacting citizens’ lives for generations. It is up to the courts to determine if laws are fit for an ever changing society, weighing the consequences of decisions for generations yet to come. The courts also must uphold the laws in a manner that provides consistencies across the branches of government. Finding and striking a balance between the necessity for stability in our legislation and the need to adapt to changing cultures is a demand that the Judiciary continues to grapple with.

Over the years, the courts have used their power to grant and uphold rights of citizens across the country, from same sex marriage and interracial marriage to segregation, healthcare, privacy, free speech, and more – slowly adapting to a changing society’s priorities, while walking the line of constitutionality. The courts remain one of the most powerful branches of government in the United States, which is all the more reason to examine the lifetime appointments in contrast to term limits of other branches like the executive.

Justices on the court are not elected, they are appointed: nominated by the President and approved by Congress. High school teachers tell us that the appointing of a justice to the supreme court are the checks and balances of our government hard at work. Yet we see time and time again that the Justices and the seats they occupy become entangled in a thicket of partisan ideas and political goals that sway the court for decades. How do you fight against a partisan judiciary when the Justices serve for life? And how can you have faith that the judiciary can respond to changes in cultural values over time if the Justices are products of a bygone era? Conversely, doesn’t having a branch of government dedicated to serving over a lifetime grant us some insight into the successes and failures of the past? Wouldn’t it be better to have a justice who has seen more of history unfold than to have a justice who is as green as the lawns of the White House?

While term limits could address concerns about aging judges and outdated ideas, they can introduce their own set of potential issues such as the risk of political appointments becoming more frequent, subjecting the judiciary to the same partisan dynamics seen in the legislative branch.

Justice David Souter, a Supreme Court Justice appointed by President George H. W. Bush fought against partisanship in the judiciary, and disappointed the Republican party in the process. In More Perfect’s “No More Souters” podcast episode, host Julia Longoria explores the appointment and term of Justice Souter, and how he viewed stare decisis, or the idea that jurisprudence and judicial rulings should be based on precedence over politics. Souter, being nominated by a Republican president, was at some level expected to act in a partisan way for Casey v. Planned Parenthood, and didn’t, choosing instead to uphold the precedent set by Roe v. Wade.

The Supreme Court holds an uncomfortable amount of power over the rights of the American people, simply because most of our believed rights are interpreted as extensions of specific amendments or as part of the Ninth Amendment, which covers the “unenumerated rights” of the people. Would a democrat be comfortable with a conservative Justice’s interpretation of the unenumerated rights of the people? The apolitical analysis would argue that all people should be okay with the interpretations because it’s the job of a Justice to uphold the Constitution. But reality has a funny way of creeping into these discussions. The truth is that most democrats would be uncomfortable with a conservative’s interpretation of the Constitution, just as conservatives would likely disagree with a left-leaning justice’s interpretation. When it comes to the supreme court, it seems we can’t have our cake and eat it too.

For example, let’s say that a left-leaning court rules that no business can turn away customers based on sexual orientation or gender. And a lesbian-only bar in Massachusetts tries to turn away a group of heterosexual people. The left-leaning democrat would argue that a business can’t turn away someone because they are gay (see: 303 Creative LLC v Elenis and Masterpiece Cakeshop v. Colorado), but by the same judicial precedence, lesbian only spaces could not fairly discriminate against heterosexuals by refusing entry. So in this thought experiment, a left-leaning court sides in favor of democrat ideas of non-discrimination, but that opens the door for limiting the remaining queer-only spaces that exist. So is that decision a win for democrats, or a win for conservatives? It is both, and neither. Framing the courts in a partisan manner is part of the problem.

The judiciary likes to hold itself up as an institution apart from politics. The most mighty court in the land should be above politics, no? The problem is that Congress and the executive branch treat the Supreme Court as a political tool, to great success. Republicans trying to overturn Roe worked for years to slowly build up a conservative majority on the courts, knowing it would benefit their political agenda. Meanwhile, democrats are stuck talking about the high and mighty philosophical ideals of justice and democracy.

We can’t view the courts as a non partisan entity in the Government, even if that is what it should be. Ignoring the reality of political appointments and partisan decision making in constitutional rulings is tantamount to complacency in voting. Will you be comfortable with the decisions made by a court that will last most of your lifetime? And are you comfortable with interpretations made a generation ago changing anytime soon?

What next?

So… now what? I’ve spent the better part of 2000 words examining all the ways term limits won’t solve our problems in government. So what do we do? Should we have electoral limits for Congress and term limits for the supreme court? Personally, I think yes.

While I may have spent all this time talking about what term limits won’t do for us, and how they complicate things further, I think the ideas around limits are at least guiding us in the right direction. The reality of it is that some Congresspeople are reaching a point of senility. We cannot in good conscious, democrat or republican, believe that someone in the early stages of dementia or Alzheimer’s can make the best decisions for everyday Americans. There are already age minimums for the President and elected members of Congress. Maybe we should introduce an age limit. We could tie the age limit of congress and the presidency to the retirement age.

As for the courts, there is no minimum age to serve, nor is there a maximum. In many ways, I disagree with the jurisprudence behind the structure of the Supreme Court, but as Judge Dianne Woods said, it is beneficial for the courts to move more slowly than the legislature or executive. Executive orders can change in a day, and laws can change quickly by each election cycle. The lifetime appointments of the Judiciary adds an element of stability to our government. If we want to maintain that stability, limiting how long a justice can serve is not going to benefit the cause.

Alternatively, the existence of a term limit for justices would add an element of predictability to appointments. Rather than being surprised by the “untimely” death of a justice, or their unexpected retirement, the American people could brace themselves for a known retirement date set years in advance. We can still have stability by setting the term limits to be much longer than that of the legislative and executive branches. Where the President serves for four years and Congress serves for two and six years depending on the house or senate, the courts could serve for 30 years, or 40, if we prioritized appointing younger justices. This would give us some sense of generational stability, new justices being appointed as each generation comes to the age of service in Congress. It would allow for the courts to remain fresh and in touch with the shifting culture, and it would encourage a more active role in the appointments and nominations.

At the end of the day, there is no easy answer to the question of governance. What constitutes the “right” way to govern has been, and always will be debated. I just hope that with each election cycle, we push a bit further forward. That with each new representative, we better serve the American people. That with each generation, we strive to leave the country a bit better for our children than it was for us. Maybe term limits are the way to do it. Maybe lifetime appointments are. The only way to decide is to participate in the process.