No one seriously expects President Joe Biden’s proposals to change the tenure and ethics rules for U.S. Supreme Court justices to go anywhere this year.
Given how closely divided Congress is and how little time Biden now has left in office, no legislation as significant as this can build the bipartisan support it would take to be enacted.
But as a philosophical exercise, what about it? Are Biden’s proposed reforms to hold the nation’s highest court to stricter ethical standards and to impose term limits on the justices a good idea.
Yes and no.
First the yes.
Some current members of the Supreme Court have been too lax on avoiding the appearance, if not the reality, of impropriety. They have accepted lavish trips and vacations from wealthy benefactors interested in the court’s work. They have juiced up their income with lucrative speaking engagements and book deals. They have declined to recuse themselves from highly politicized cases in which their spouses have publicly taken sides.
Recent attempts by Chief Justice John Roberts to address the problem are flawed because there is no independent entity to decide whether the gifts, favors and political affiliations compromise the justices’ impartiality. The justices get to make this decision for themselves, and not surprisingly they rarely think they have done anything improper.
If Congress could create an independent review authority without violating the constitutional doctrine of separation of powers, that would be a useful way to hold ethically challenged justices to account and, in the process, enhance the public’s respect for the Supreme Court, an essential element in getting Americans to abide by its decisions.
As for doing away with lifetime appointments, that is a more problematic proposition. Certainly, some members of the U.S. Supreme Court have over the years stayed on too long, and the tendency to hang on way past their intellectual prime has gotten worse in recent times. Since 1970, according to the pro-reform group Fix the Court, the average tenure of a Supreme Court justice has been 28 years, more than a decade longer than the average for the first nearly 200 years of the country’s history. This trend not only reflects that people live longer due to medical advances. It also reflects a tendency that pervades all three branches of the federal government, in which those in office are reluctant to let go of their power and the prestige that comes with it.
But to put term limits, such as the 18 years advocated by Biden, on the justices could have unintended consequences. From the early days of the Supreme Court, it was understood that lifetime appointments were the best way to insulate the justices from partisan pressures and maintain their independence. If justices knew they would be out of a job in 18 years, they might be more inclined to bend their decisions to ingratiate themselves with potential future employers and one political faction or the other. Term limits could worsen the politicization of the Supreme Court, not lessen it.
A compulsory retirement age — say at 80 — might be a better way to ensure that members of the Supreme Court don’t stay on the bench longer than they have the health or mental acuity to handle the job. If this nation is going to do that, though, it shouldn’t single out the judges. It should adopt compulsory retirement ages for presidents and members of Congress, too.
There has been more propping up of feeble elected officials than of appointed judges in the federal government.
Biden himself could attest to that.
