“The constitution’s a mess / So it needs amendments / It’s full of contradictions / So is independence.”
— “Hamilton,” Lin-Manuel Miranda
Imposing term limits on U.S. Supreme Court justices isn’t a new idea; it’s been floating around for years, not to mention most other major democratic countries have some sort of term limit or mandatory retirement for their highest court.
But the idea surfaced again Tuesday in an article by New York Times opinion columnist David Leonhardt, and it’s made more compelling now given the tangled web of bravery, confusion and partisan fisticuffs that has become the accusation leveled against Judge Brett Kavanaugh.
Limiting Supreme Court justices to, say, 18-year terms has some merit. As Leonhardt argues, it would take the edge off of the political nature of appointments and the confirmation process. With staggered terms, every president would be guaranteed two appointments per term. Nice, right? No more lifetime appointments for a group of well-educated men and women who are accountable neither to the people nor to the president who appointed them.
Or maybe not so nice. First — and this is nothing more than an author’s indulgence with a captive audience — this writer has never liked the phrase “lifetime appointment.” And neither did the Framers. Article III of the Constitution simply states federal judges “shall hold their Offices during good Behaviour.” Impeachment is fair game, as has happened once to a Supreme Court justice and 14 times to lower court judges. Eight of those lower judges were convicted and removed from office. A petite number, yes, but the point is mechanisms exist to make sure “lifetime appointment” doesn’t mean an unaccountable reign.
Speaking of mechanisms, instituting term limits would mean — wait for it — amending the Constitution.
Yes, it would mean altering the “supreme Law of the Land,” the precious parchment that hangs by the thinnest of threads, the lodestar for the greatest country in the world.
Doesn’t changing the Constitution feel … weird?
Yet, 27 times Americans have decided the original text wasn’t serving its intended purpose to “form a more perfect Union.” Some changes feel more significant than others. Imagine the excitement and opposition of extending the franchise to all Americans regardless of sex, abolishing slavery or changing how senators get elected.
Reverence for the Constitution must include reverence for the mechanisms by which it changes.
Then there are technical things like changing the date new presidents take office or giving the District of Columbia electoral votes. And if you’re between 25 and 47 years old, all you’ve experienced is the ratification of an amendment that will most likely never affect your life.
Term limiting the Supreme Court falls in the more significant category. As with any amendment, it would require acknowledging the Framers’ logic doesn’t hold up in the 21st century. But is that such a bad thing? After all, they built within the Constitution clear operations for how to alter it. Reverence for the Constitution must include reverence for the mechanisms by which it changes.
Perhaps some of the hesitation to change springs from the lapse of time since states last ratified an amendment. Admittedly, the 27th Amendment passed only a few months before I was born, and I’m joined by a full third of the population who hasn’t lived through the amendment process. Maybe we just forgot it is a relatively normal, albeit infrequent, thing.
Or maybe there’s a deeper concern, one that brushes against the unknown. When is a simple law passed by Congress sufficient, and when is an addition to the country’s governing document in order?
What if changing the Constitution makes things worse, not better? What if it threatens American liberty? On the other hand, what if it enhances freedom or lays the foundation for a better republic? No one can really know for sure. It was impossible for the Congress of 1866 to know the 14th Amendment would provide the foundation for ending racial segregation, permitting abortion, handing George W. Bush the presidency and legalizing gay marriage, yet here we are, forever changed as a nation because of it.
The greatest unknown happened 242 years ago when a fed-up Congress broke away from its motherland. It took on an ambiguous form 11 years later when delegates emerged from months of secret meetings with a brand new form of government. It has evermore been called the American Experiment, and so far as we know, it hasn’t ended.