The health of the nation’s highest court should not depend so heavily on the whims of late-career jurists or the unpredictable variables of health. Nor should Supreme Court nomination battles be as acrimonious and desperate as they have become. On current trends, vacancies will only be filled when the president and the Senate are of the same party.
Some Democrats favor expanding the court to take advantage of their temporary moment in control. This would just elicit a response in kind from Republicans when they are back in control. A better idea is one that Justice Breyer himself endorsed on Sunday: Supreme Court term limits.
“I think you could do that,” he said on “Fox News Sunday.” “It should be a very long term because you don’t want the judge who’s holding that term to start thinking about his next job.” One version of this idea would impose 18-year terms on justices, staggering appointments so that an equal number come open in every presidential term. This reform could do a world of good.
Elections would still matter; parties that won more presidential races would make more appointments. But nominations would be predictable, orderly and less contentious. Justices would no longer sit on the court for a generation. Presidents would not have to search for the youngest and most ideologically zealous nominees. Older nominees who have more experience on lower courts or in other realms of life could once again serve. A broader range of people could sit on the court, and jurisprudence might not turn on the idiosyncrasies of one or two justices who sit on the high court for decades. Lower-court judges seeking elevation would face less incentive to prove their ideological credentials in their rulings, as presidents felt less pressure to fill court seats with extremists. Term limits would also provide some protection against justices experiencing mental decline while holding one of nine votes on matters of extreme national importance.
Blowing up the court is not a good option, and neither is doing nothing. In this case, there is a constructive middle path.