It seems like there could be any number of scenerios where a president would have greater influence over the court. THis essentially locks in a president nominating 2 members per 4 year term, as well as any that die in office or are removed in some other way.
It also would require removing justices who might not be extreme and make the position ripe for being replaced with an ‘extreme’ ideology.
I mean, I’m sure it will help in some scenarios, but it also seems like it could facilitate others
It doesn’t. The only thing limiting the extremism of the justices if whether the president’s party has a large enough Senate majority to ram them through. If anything, the fact that one will only be able to get 18 years’ service out of a justice may give even greater incentive to pick a hardliner rather than a moderate.
With a slim majority or no majority, a president is forced to pick someone moderate. With a large majority, it’s far-right or far-left time.
It only reduce the time an individual extremist justice can be on the court. However, more regular replacement of justices will allow the electorate to have a little more control over the makeup of the court through their representatives.
Certainly if one party dominates the White House for three or more presidential terms, they could dominate the court but at least it won’t remain with the same composition for decades waiting for a justice to retire or die. And there would be a mechanism for removing justices other than impeachment, so even if we had another justice as venal as Clarence Thomas has nakedly revealed himself to be, they wouldn’t be on a lifetime appointment and totally insulated from the consequences of their actions in perpetuity, and greater scrutiny on such issues as character and integrity could be highlighted (assuming that the majority in the Senate gives a wet fart for such characteristics, which certainly wasn’t true when they confirmed Cavanaugh). It’s a better proposal than just expanding and packing the court in the hope of being able to shift the influence from one party to another, which is a strategy quite likely to backfire.
The expectation that the Supreme Court should be the ultimate and politically unbiased arbiter for interpreting all statute law and caselaw, regardless of how badly written or how much the complexities of a challenging suit have been distilled to some (often peripheral) principle is severely overstated and unrealistic, as is the notion that once SCOTUS has rendered a decision that it should stand for all time and justices will be bound to uphold it. The list of SCOTIS decisions that are now broadly considered bad law or interpretations (Dred Scott v. Sandford, Plessy v. Ferguson, Hammer v. Dagenhart, Bowers v. Hardwick just to name a few) should be enough to consider whether the Supreme Court decisions should be effectively relied upon to be a basis for durable policy versus codifying decisions in federal statute law or, when necessary, as Constitutional amendments. I think it is obvious now—if it wasn’t before—that relying on Roe v. Wade was a weak foundation for protecting the privacy and reproductive control for women, although whether the federal government could legally police state legislatures over a topic that is not addressed, even peripherally, in the Constitution begs the question of whether anything short of a Constitutional amendment would be enforceable anyway, at least insofar as governing in-state surgical abortion procedures.
Doing anything to prevent another squatter like Thomas from being on the Supreme Court for decades, doing very little other than enriching himself and biding his time until he had a politically favorable majority to come out swinging, is at least a step in the right direction.
Stranger
Also, right now, the makeup of the court is only loosely correlated with how the people vote. We’ve now had four years of a Democratic president, and before that four years of a Republican, and before that eight Democratic, eight Republican, and eight Democratic, but due to random quirks of who happened to die when, we ended up with 6 Republicans to 3 Democrats on the court. It’s one thing to get extremists when that’s what We the People want, but it’s another to have them forced on us.
It will reduce the urgency of each pick (at least, that’s my hope). If we get a guaranteed justice every two years, each one is not such a massive thing any more. Still important, but much more routine, and thus less attention.
I don’t think 18 year terms does much to mitigate extremism but there are other reforms that might do so. For example, we could allow Presidents to appoint Justices and allow but not require them to be confirmed by a supermajority vote in the Senate. If the Justice has been confirmed, they may be removed only by impeachment in the House and conviction in the Senate. If the Justice is not confirmed by a supermajority vote in the Senate, they may serve but only if they are not disapproved by majority vote of the Senate. The Senate isn’t obligated to do anything but they effectively retain a veto vote over justices who haven’t been confirmed. Then, a President might choose more moderates in hopes that they could be confirmed on a bipartisan basis and be removal resistant, or, if they can’t be confirmed at all, moderates might be less likely to be removed after an election that shifts control of the Senate.
I agree with @Tired_and_Cranky that a supermajority of assent is the one and true cure to extremism.
But having an 18 year term limit could be used to limit the top age that people get to, before they leave the court. I think the general idea would be that younger folks are generally more willing to change their opinion; older people are more likely to be stuck in their ways and more extreme. So if you appoint younger judges then you can ensure that your judges leave office before they’re too over-the-hill and no longer judging in an honest way.
There’s also an argument that the longer someone is in power, the more time that others will have had to recruit and corrupt them.
Of course, life terms are meant to provide the security in occupation to negate corruption, so you remove that by having an 18 year term.
I’d personally argue that raising the wage of the Justices, so they feel like they’re beyond keeping up with the Joneses, and building in a security/retirement package should also be a part of this since, personally, 18 years still feels like plenty of time to corrupt someone.
Supreme Court Justice isn’t an entry-level position, and 18 years is a very long term. It’s not unusual for a Justice to be 50 when they’re first nominated to the Court, which would mean that they’d be 68 at the end of their term. That’s an age when many folks are retiring anyway. Give them a good enough retirement plan, and that’s plenty of “security in occupation”.
Human nature doesn’t work that way. If you raise someone’s wages, they’ll just find some richer Joneses to keep up with.
How’s the current approach working out as far as favoring moderates over hardliners?
If you don’t think the Trump justices are hardliners, I’m not sure what to tell you.
I don’t think it IS going to mitigate extremism in the short-term, because what has driven extremism on the Court is the entire Federalist Society/Republican structure that has been built up over decades to identify, groom, police and promote ideologically pure judges. That structure isn’t going to disappear just because nominees now only serve for 18 years.
But long term, having a constant, steady pace of justices cycling onto and off of the court would hopefully cool the do-or-die nature of Supreme Court vacancies.
Yes, but the higher that you make it, the less likely that it would be. There’s always going to be the chance that you get that one random scumbag. But we shouldn’t expect it to be common, unless the pay is too low relative to the work.
From the outside, I don’t think we can reasonably say whether the current pay scale is sufficient. But if the judges are starting to monetize their position - selling books, giving speeches for large payouts, etc. - then that’s probably a reasonable signal that they’re not making enough. A better signal would be to just straight up ask them. Do you feel like you’re being compensated appropriately, relative to others in the legal profession, and given your central roll in the nation?
The answer should be “yes”. If it’s not, that’s going to be an issue, regardless of what you set the term limit at.
In line with discussion, Biden has floated bill to enact term limits and enforceable ethics rules, but then I wonder if even passed, could SCOTUS nullify the bill?
The basic problem that leads to extremist Supreme Courts is that the appointment of Justices isn’t fairly apportioned between Presidents. Our current crisis exists because the GOP got lucky (and gamed the system) and got three Justices out of a disgraced one-term President.
If the Republicans had won the last four elections and packed the court with fascists, at least it would be the fault of the voters rather than of a poorly thought through Constitutional rule.
So any reform (including term limits)which addresses that issue will help, and any which doesn’t won’t.