Law Professor Makes Compelling Argument for Term limits for Supreme Court

By Hon. Jonathan Yates        The Buffalo News                         June 1, 2009

With an opening on the Supreme Court, attention should also be turned to the lifetime appointments for the justices. This lifetime term now enjoyed by justices not only contravenes the spirit of the Constitution, it counters the role intended for the court as a minor player in the equal judiciary branch of government. Term limits are needed to adjust the role of the court to the intent of the founding fathers.

The greatest powers of the court originate not from the Constitution or Congress, but from their own decisions. The most prominent is Marbury v. Madison, where the court granted itself judicial review, the power to determine the constitutionality of legislation. So limited was to be the role of the court, however, in the eyes of the founding fathers, that in the early years it not only did not have a home but did not meet to hear any cases. Justice John Rutledge left the court for the South Carolina Supreme Court in 1791. When the U. S. government moved from Philadelphia to Washington, D. C., in 1800, the court, already operating for a number of years, was still not given its own home, instead housed in a basement room in the Capitol, further evidence of its intended limited role.

This was due to a number of cogent factors. There was no appreciable legal industry in the United States in the late 18th century. The first law firm of only two lawyers did not appear until just before the Civil War. Life expectancy at the time of the founding fathers was less than half of today, well under 40 years. The average tenure for a justice is now 26 years, with 80 the mean retirement age. By contrast, presidents are limited to two terms of four years each.

Most importantly, the founding fathers wanted a government responsive to the people. Taxes must emanate in the House of Representatives, where elections are held every two years. The same House votes as to whether an impeachment trial of a president will be held. Revolting against unchecked power in the form of King George III, it is doubtful the founding fathers envisioned justices having tenure equal to the life span of the day.

Term limits of nine years for each justice should be instituted. There will be many immediate benefits. Fierce nomination battles will end. With justices only on the bench for nine years, rather than an average of 26, opposition will be less determined as appointments will come annually. Scheduling nomination hearings at the same time every year in the Senate will greatly reduce tensions. Justice Samuel Alito was nominated in October 2005 and Chief Justice John Roberts in July 2005; both were confirmed with no institutional or logistical problems for the Senate or the court.

Nominating justices annually will reflect the choices of the American voter if each president appoints four justices. Some presidents had no appointments. Others tried to “pack the court.” The country changes, as votes for president and Congress manifest; and the court should be more representative than that of the average justice today at retirement: 80 years old, appointed almost three decades ago.

A healthier flow of diverse talent to and from the court will result. Justices now are the same: former appellate court judges with Ivy League degrees. None were elected officials, law school faculty or a corporate general counsel.

Personal responsibility will be greater from the justices. There have been instances of justices accepting cash gifts, substance abuse and other unacceptable behavior from such a powerful position. Nine-year terms will ensure a robust flow of legal talent to the court and responsible behavior while on it. A president could elect to reappoint a superior justice.

More than 50,000 attorneys work as judges, law school faculty or in major law firms in the United States. Selecting one per year for the Supreme Court will not be difficult.

“We are a nation of laws, not men,” wrote John Adams. Term limits for Supreme Court justices is a guarantee.

Jonathan Yates was deputy general counsel for the Committee on Government Reform and Oversight of the U. S. House of Representatives. He has degrees from Georgetown University Law Center, Harvard University and Johns Hopkins University.


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