The Washington PostDemocracy Dies in Darkness

Opinion Judicial term limits are the best way to avoid all-out war over the Supreme Court

People gather outside the Supreme Court on Sunday to mourn the death of Justice Ruth Bader Ginsburg.
People gather outside the Supreme Court on Sunday to mourn the death of Justice Ruth Bader Ginsburg. (Joshua Roberts/Reuters)
Placeholder while article actions load

IS THERE a better way? The untimely death of Justice Ruth Bader Ginsburg could easily further poison the relationship between the parties, sap the legitimacy of the judiciary and encourage half the country to feel as though it has been cheated. But what if it spurred those leaders who cling to a modicum of principle to seek something better?

Not that such people are in obvious evidence at the moment, particularly on the Republican side. Despite video after video, quote after quote from the likes of Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) insisting in 2016 that presidents should not be allowed to fill Supreme Court vacancies during presidential election years, it has become obvious that they hold no such principle — or, really, any principle whatsoever — now that they have an opportunity to jam a conservative onto the court at the last minute. They offer no plausible rationale for their hypocrisy. With a couple (so far) of admirable exceptions — Sens. Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine) — they want to stack the court because they can.

Live updates on Ruth Bader Ginsburg’s death

In response, Democrats find themselves caught between appealing to Republicans’ moral credibility, which under the circumstances feels like a fool’s game, and threatening something akin to mutually assured destruction: They warn they might pack the Supreme Court right back, if and when they win the presidency and the Senate, by dissolving the norm that the court’s membership should stand at nine.

There is an alternative way for Republicans who are troubled by the hypocrisy their leaders urge them to embrace and Democrats who are reluctant to pack the court. The key would be to lower the stakes of any one Supreme Court pick, so the parties are not tempted to resort to all-out war every time a justice retires or dies. The best way to do that is to impose term limits — of, say, 18 years — on Supreme Court justices.

A smartly designed term-limit plan would remove the role of fortune in determining how many justices a president gets to nominate. Justices’ terms could be designed to end in a staggered manner so that an equal number of openings come up in every presidential term. Over time, more justices would have impact, preventing the idiosyncratic preferences of one or two individuals from determining U.S. jurisprudence for decades. This plan would also eliminate the incentive for presidents to pick young and relatively inexperienced judges merely because they are likely to live longer. And leaders from both parties could tell their voters that they have ensured that the other side will never again get a lifetime appointment.

A party that more often won the presidency still would have an advantage over time. That is good: Elections should matter. But they would matter in a predictable, rational way. The country would no longer be hostage to a system that favors the lucky — and the shameless.

Read more:

Dana Milbank: They couldn’t even wait until Ruth Bader Ginsburg was in her grave

James Downie: Ted Cruz accidentally shows Democrats the way forward

Ruth Marcus: Amy Coney Barrett’s judicial record should alarm liberals

Hugh Hewitt: Yes, expect fireworks. But we’ll get a Supreme Court confirmation.

Matt Bai: Joe Biden should choose the next Supreme Court justice. Now.

Jennifer Rubin: Biden blows up the notion RBG’s seat helps the right