We Need to Talk About Term Limits

Strict Scrutiny

In this episode of 'Strict Scrutiny,' host Kate Shaw discusses Supreme Court reform with Alicia Bannon from the Brennan Center for Justice,

Key takeaways

• Term limits are widely supported by the American public, including a bipartisan majority.
• An 18-year term limit with senior status after retirement would ensure regularized presidential appointments every two years.

Main topics

• Supreme Court reform
• Term limits for justices

Notable quotes

"No one should have that much public power for life. That leads to a lack of accountability, a lack of connection with ordinary life."

Conclusion

Term limits for Supreme Court justices represent a transformative and widely supported reform that could

Transcript preview

Speaker 4 (0:00) Strict scrutiny is brought to you by Americans United for separation of church and state. It's back to school season. And this year, 5 million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for separation of church and state, are taking the fight to the Supreme Court. And they need you to amplify their voices before the Supreme Court gets its hands on this case. And we all know what the Fifth Circuit did. Obviously, they let Texas get away with all of this. Speaker 5 (0:40) They're going to go up, but... We're going to fight to get him taken down. Speaker 4 (0:45) That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian. And their kids are in Texas public schools. The story they tell in this video is moving, and we hope everyone hears and shares it. Look, there is a human cost of Christian nationalist policies, like these Ten Commandments laws and the decisions the Supreme Court hands down. Every child deserves access to public education where they aren't subject to state-imposed religion or religious instruction or coercion. Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion. Visit au.org. 10C to learn more about this case and how you can help join the fight to protect church-state separation. We talked a little bit about this case on our regular episode last week, but there's so much more to be said and to learn about the people who are fighting back. Speaker 1 (1:54) She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Speaker 3 (2:24) Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Kate Shaw, your lone host for this edition of our special bonus series, Hot Supreme Court Reform September. And for this installment of our series, I'm happy to be joined by returning guest Alicia Bannon, a senior director at the Brennan Center for Justice, where she leads the center's judiciary program and its Kohlberg Center on the U.S. Supreme Court. Alicia, welcome back to Strict Scrutiny. Thank Speaker 5 (2:51) you so much for having me. Speaker 3 (2:52) So we're really happy to have you. And as I just said, we are doing a series about Supreme Court reform. People, I think, have a sense that something has gone deeply wrong with this Supreme Court. There was a Gallup poll in late July that had Supreme Court approval at 33 % at or near all-time historic lows. So it is not just us who have the distinct impression that something is badly. amiss. And we think it's important for conversations about the Supreme Court right now to focus on specific reforms to the Supreme Court. We will definitely continue on this show and in other venues to criticize the court in both general and specific terms. But in addition, we wanted to bring listeners and viewers a series of episodes that were really laser focused on specific potential reforms to the court. And our topic for today is... term limits. Alicia, this is something that you've been thinking and writing about for quite some time, and I'm excited to get into it with you. But before we drill down on term limits, I want to take a step back and ask you to talk kind of generally about how you would characterize what is so wrong with the Supreme Court. Speaker 5 (4:04) Well, thank you so much for having me and for starting this conversation. I think it's a really important conversation to have. I think in a fundamental way, the Supreme Court is failing in the role it is supposed to be playing in our democratic system. It has been gutting the role of Congress. We saw that this term in the Kalei decision, where it eviscerated the Voting Rights Act, in the slaughter case, where it eviscerated independent agencies. The court's also been aggrandizing its own role. So we see that in its conduct on the shadow docket, where it has both kind of vertically, when you look at it, relationship with the lower courts and then when you look at its relationship with the executive branch, it's both been behaving in a way that's unprecedented and, frankly, inconsistent if you look at how it has engaged with the Trump administration as compared to previous administrations. And we're just seeing more broadly a lack of respect for the traditional constraints, things like precedent, that are supposed to keep the court in its lane. And so I think across a whole bunch of arenas, we just see a court that's not playing the function that we need it to play in our democracy. Speaker 3 (5:13) I think that's all exactly right. And I do think that what I find kind of hopeful about this moment is that I think that that diagnosis is. beginning to be more broadly, I don't know if broadly enough, but more broadly accepted. And so then I think the question is, are we stuck with the Supreme Court that we have, which is fundamentally disempowering other important institutions in government? And as you said, asserting this enormous power for itself in ways that really throttle the functioning of democracy, like are we stuck with it or are there things that can be done? And I think the answer is emphatically, we are not stuck with this court. There is a lot that can be done. some of it through just the ordinary process of legislation. Some of it will raise questions about sort of constitutional soundness and some of it will not. And so I think the different kinds of reform proposals raise different kinds of questions. So I think there is value both in talking broadly about the Supreme Court and the need to fix what is broken. but also I think value, as I said earlier, in talking specifically about individual proposals. And so now let's turn to the individual proposal that you and your colleagues at the Brennan Center have spent quite a bit of time talking about and thinking about, and that is term limits for Supreme Court justices. So back in July, you and a couple of colleagues put together a 40-page memo titled... constitutional analysis of proposals for statutory Supreme Court term limits. Now, that is, I will say, a fairly academic sounding title. I am a law professor. I read things with titles like that all the time. But it sounds academic. But I do think that you guys decided it was important to make clear what the objections to the ability of Congress to impose term limits look like and what the answers to those objections are and how. making justices term limited actually does square with constitutional design if you do it right. So I do want to get into the constitutional weeds a little bit. But before that, can you talk a little bit about why, in light of the problems that we have been talking about, term limits for Supreme Court justices are something that we should or maybe even that we need to pursue? So can you just give us the top line overview of the case for term limits? Speaker 5 (7:29) Absolutely. I think term limits, at least as we think about it at the Brennan Center, is an important starting point for the conversation about court reform. It's really popular. Many polls, over three quarters of Americans support term limits for Supreme Court justices, including a bipartisan majority. So I think one of the things that's really appealing about term limits is that it is a common sense solution. I think there's a basic principle that no one should have that much. public power for life, that that leads to a lack of accountability, a lack of connection with ordinary life and ordinary people. That's just not good for the functioning of our democracy. And if you think of at the starting point of justice starting there, we're looking at this stage of people who may be on the bench for 40 years, generational power in. And I. And so I think one component of term limits and one reason why I think it's so popular is that just basic notion of accountability. Another dimension of term limits, and I'll step back. Let me just explain the proposal in a little more detail. Typically, how term limits proposals work is that you have an 18-year term for justices. After that phase, the justices continue to be judges. They continue to hold their offices, but they move to a senior status where they're not hearing at least most of the cases that the court is hearing. At the same time, you introduce a regularized appointment process. So once the system gets going, you end up with a process where every two years, the president will get a new appointment to the bench. And so in a four-year term, every president will get two and only two seats to fill. Regularizing the appointment process in that way is, I think, another big benefit of term limits, because one of the problems that we're seeing today with the court is that we have a supermajority that is completely... unconnected to our public values. If you look at how elections have gone over time, right now we should be seeing a court that is much closer as a roughly, you know, kind of 50-50 divide if you look at who's won our presidential elections over the past several years. And instead, we have