Are Term Limits A 'Structural Fix' For SCOTUS Being 'Out-Of-Step With The American People'?

2 months ago

Constitutional Law Professor Kermit Roosevelt joins Forbes Senior Editor Maggie McGrath on "Forbes Newsroom" to discuss how term limits could potentially solve issues of partisanship within the Supreme Court.

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Transcript

00:00Now, you mentioned term limits, and this is something that has come up in other branches

00:06of government.

00:07We saw in North Dakota legislation, local legislation, I should note, setting a maximum

00:13age for folks running for office there.

00:15It's obviously been in the news with President Biden's health and age as he runs for reelection.

00:21Does the political climate that we're in right now make that a more bipartisan issue and

00:27something that is more, a piece of reform that is more likely to pass?

00:32Well, it used to have pretty broad bipartisan support.

00:36And the important thing to understand about term limits, I think, is it's not really a

00:41response to the problem of people getting too old.

00:44That would be an age limit, you know, and it would be a little bit ironic maybe for

00:48Biden to be pushing for term limits on that basis.

00:51And it's not even really a response to the problem of people serving for too long, although

00:56I think there is an issue with justices serving for 30 or even 40 years.

01:02The real problem that term limits is supposed to address is about the composition of the

01:06Supreme Court and the influence that each president has over the Supreme Court.

01:11So under our current system, how many appointments does the president get?

01:15No one knows.

01:16You know, it could be zero, like Jimmy Carter.

01:19It could be three in one term, like Donald Trump.

01:23And how much influence a president has over the Supreme Court is sort of random.

01:28It's affected by whether a justice unexpectedly dies, and it's sort of controlled by the justices

01:33themselves because they usually time their retirements so that their replacement will

01:37be appointed by a president who shares their values.

01:42So what that means is there's no predictable way in which the composition of the Supreme

01:48Court is tied to anything other than random chance and partisan behavior.

01:54And that's just not a good way to decide which of our two political parties gets to control

01:59the Supreme Court.

02:00So the founders, when they drafted the Constitution, they weren't thinking about political parties.

02:05They didn't imagine that two parties would be fighting for the Supreme Court as a power

02:08center within the government.

02:11But that's what's happening now.

02:13And everyone understands it does matter who the justices are.

02:16It matters whether a Democrat or a Republican appoints them.

02:20So it would make a lot more sense if we had a system where if you win a national election,

02:25like the Democrats win the presidency, they get to put two justices on the Supreme Court.

02:31And the point of term limits is if you take the justices off or move them to senior status

02:36or something like that every 18 years so that each justice has an active term of 18 years,

02:42then with a nine-member court, you get two vacancies per presidential term.

02:47Each president gets to appoint two justices per four-year term.

02:51And that way, each president has an equal impact on the composition of the Supreme Court.

02:55And I think that a lot of the problems that we're seeing now come from the fact that the

03:00court is so out of step with the American people.

03:03And it's out of step because we've got a 6-3 Republican supermajority, even though the

03:08Republicans have lost five of the last eight presidential elections.

03:11So term limits is really a sort of structural fix to that problem.

Are Term Limits A 'Structural Fix' For SCOTUS Being 'Out-Of-Step With The American People'?

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