Dem Reps. Eye High Court Term Limits, Temporary Expansion

Law360 (September 25, 2020, 11:01 PM EDT) -- Three progressive House Democrats are proposing an 18-year term limit on future U.S. Supreme Court justices that would almost certainly temporarily expand the high court beyond nine seats, unveiling their bill as Republicans move to replace the late Justice Ruth Bader Ginsburg.

The trio, members of the chamber's Progressive Caucus, argue their plan would lower the temperature of the confirmation process, depoliticize the courts and make the justices more reflective of the country. It has new urgency for Democrats as they vow that "nothing is off the table" if Republicans confirm President Donald Trump's third high court pick before Election Day.

The sponsors of the bill, which was unveiled Friday ahead of formal introduction Tuesday, are Reps. Ro Khanna of California, Don Beyer of Virginia and Joe Kennedy III of Massachusetts.

"We can't face a national crisis every time a vacancy occurs on the Supreme Court," Khanna said in a statement Friday. "No justice should feel the weight of an entire country on their shoulders. No president should be able to shift the ideology of our highest judicial body by mere chance."

Though the measure is presented as a term limits proposal, it would also expand the Supreme Court beyond nine seats for the first time since 1866. Some on the left call for expanding the court to counter Trump's impact, an idea that opponents complain would be court-packing.

If the bill became law, the number of justices could swell into the teens over the coming decades. Presidents would make an appointment every odd-numbered year, while previously seated justices would not be subject to the term limit and could remain on the high court indefinitely. That could allow for tie votes when the number of justices is even.

Tuesday's introduction will be the first time term limits are proposed in Congress as a bill rather than a constitutional amendment. The proposal's backers say Congress can impose term limits by statute without a constitutional amendment because term-limited justices would remain federal judges with lifetime tenure.

Legal scholars differ on this issue. The U.S. Constitution requires that federal "Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour."

The bill would allow "senior justices" to serve on appeals courts, as several former justices have done after voluntary retirements. They could be temporarily recalled to the Supreme Court when a vacancy leaves it with fewer than nine justices.

If the measure ever became law, its constitutionality could be decided by the justices themselves. That may be why the bill's authors exempted from mandatory retirement any justices confirmed before the bill's enactment, to avoid antagonizing the very jurists who might decide its fate.

The proposal also would automatically seat a Supreme Court nominee if the Senate does not act within six months of the president's nomination because "the Senate shall be deemed to have waived its advice and consent authority." This provision, whose constitutionality might be challenged, appears to respond to Senate Republicans' refusal to consider President Barack Obama's 2016 nomination of D.C. Circuit Chief Judge Merrick Garland.

Although the bill does not have support from Democratic leaders in the House or Senate, it underscores their promises to dramatically change the high court if Republicans seat Trump's nominee before next month's elections and Democrats gain power after the elections.

The proposal is expected to face Republican opposition, although some conservatives have backed high court term limits. Steven Calabresi, the Northwestern University law professor and Federalist Society co-founder, renewed his support for single 18-year terms in a New York Times op-ed Tuesday.

The bill's lead sponsor, Khanna, argued that GOP presidents have had a disproportionate impact on the court. Since 1969, Republicans occupied the Oval Office for 32 years and named 14 justices, while Democratic presidents held office for 20 years and only got to appoint four.

Republicans point out that Democrats dominated appointments in earlier decades, partly thanks to President Franklin Roosevelt's four terms. Many on the right say the midcentury court was too liberal; the 1973 landmark abortion decision in Roe v. Wade helped galvanize the modern conservative legal movement that has culminated in Trump and McConnell's successful campaign to reshape the courts.

Sen. Mitt Romney, R-Utah, leaned on that history when explaining his decision to back preelection action on Trump's nominee to replace Justice Ginsburg.

"We may have a court which has more of a conservative bent than it's had over the last few decades," he told reporters Tuesday. "But my liberal friends have over many decades gotten very used to the idea of having a liberal court. And that's not written in the stars."

--Editing by Bruce Goldman.

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