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Notes -
Supreme Court Term Limits
In a thread recently a bunch of you considered the Biden Supreme Court term limits proposal not that bad. Steven Calabresi just wrote a piece on just how radical and worrying it is. I'd realized things were bad, but not how bad.
Let's set aside the minor things I was talking about before, like how the proposal would lead to two new justices each term in a way that would increase how politicized the court is. Those are dwarfed by Calabresi's concerns.
One thing I hadn't sufficiently thought about is the effects of this being a statutory and not constitutional proposal. The chief one, of course, is that they only need to get a trifecta, not a supermajority, to pass the bill. Well, how likely is that? Manifold puts it at a 21% chance of a democrat trifecta. And if that happens, there's a 65% chance they end lifetime appointments. If I can multiply, that's about a 14% chance of this happening. I assume themotte is numerate enough to realize that for sufficiently important events, that's really high.
Okay, so what would happen? Unfortunately, we don't actually have a draft bill on hand. What we know is that this proposal would add a justice to the court every two years, with 18 year terms. There are two problems with this, as stated: first, it's blatantly unconstitutional, and second, how do you get this to combine with the current system?
It would be unconstitutional because the Constitution provides for "in good behavior." Calabresi clarifies that under British law this would mean "life, unless you commit felonies," and in the context of the American Constitution would be likely to require impeachment. In order to evade that (recall, they do not plan for an amendment), they are likely to have them graduate to some nominal title like "senior justice" with basically no power (maybe still let them play a role in the "which state gets the water rights" disputes, but not anything else), because the Constitution gives Congress power to shape appellate jurisdiction.
The second issue is how to start this up. The way that has only minor harms is that they could make the limits start only for future justices. Maybe each seat switches to 18 year terms after the current inhabitant resigns or dies, with the term already partway through to align with the biennial appointments. But let's face it, there's no way they choose this. Their concerns lie entirely with the current court; the term limit proposal is merely a nice-looking vehicle to attack them through. It would make no sense for them to ignore the reason that they're passing this. What they'd actually do is immediately phase out people as soon as they reach 18 years. That would mean Thomas, Alito, and Roberts would be immediately gone. They would then promptly replace them with three new rubber-stamp progressives.
I imagine the court may well, when it would first have the opportunity, strike down the stripping of jurisdiction as unconstitutional. I'm not sure. But that wouldn't get rid of the three new justices just installed. The court would then sit at 6-6 (with, I imagine, the conservatives being significantly more willing to break ranks than the liberals). The first expansion of the court since the 9-justice court was established in 1869. This is the first serious threat at court packing in nearly a century, when FDR pushed for it. (I wish some amendment to stop court packing had been passed during the good while when it was uncontroversial.)
Of course, Republicans would, upon gaining their own trifecta however many years later, promptly then adjust the rules to their liking. The net result of this will in the long term be the end of the independence of the federal judiciary, seriously harming things like equality before the law. So much for caring about democracy and so forth.
Will this happen? Probably, if they get the chance. Sinema and Manchin will both be gone, so there's not much risk of filibusters surviving. Posing it as being about term limits, instead of court-packing, dramatically lowers how radical it seems, making them more likely to do it. And 36 senators have already signaled that they are already willing to substantially mess with the court by proposing the No Kings Act, so it's well within the Overton window. No chance Kamala is more moderate on all this than Biden is.
Okay, well, what can stop this disaster? The main things are: hold onto the Senate, hold onto the presidency, or get moderate democratic Senate candidates to say they won't go along with it. The last is tricky to do rhetorically ("term limits" sound good, as seen by the positive reception it got here). So it's not the easiest to convey that the democrats are now the party threatening our system of government. The easiest way currently is to win in the Senate. The Democrats have to basically hold onto every seat, including those in red states. Unfortunately, they have a moderately high chance of doing so, but Montana's Jon Tester, at least, has a greater than 50% chance of losing his seat. Should these fail, I hope one of the liberal justices can be convinced to break the usual custom against political advocacy to speak about how bad an idea this is. I'd also try convincing Obama to come out against it, if there's any way to do so, as he holds influence without (I imagine) being quite as scrutinized and purity-tested and generally pressured by whatever the current left-wing discourse is pushing.
As a final note, the No Kings Act is also pretty radical—stripping jurisdiction in immunity cases from the Supreme Court (leaving it at the circuit courts), and instructing Federal courts to ignore any presidential immunity. No way is that last part constitutional, and would even more quickly lead to the destruction of the federal judiciary and end of separation of powers, as (if allowed, which, they're also trying to make it logistically difficult to challenge), with the floodgates opened, acts of this form would be increasingly used to force the courts to do whatever the current congress feels like.
A terrible dereliction of their oaths to support the constitution, on the part of the democrats who support all this, and revelatory that all their claims about the importance of protecting our system of government and its norms has the enormous asterisk that they'll destroy it all, if they're inconvenient.
Excellent comment outlining the threat, but what is the response? Where is our Switch in Time That Saves Nine?
For those not versed in SCOTUS lore, FDR at the height of his New Deal power was repeatedly thwarted by the SCOTUS, which was conservative in the sense of operating under constitutional understandings that existed before FDR. FDR planned to pack the court, nominating enough new justices to dilute the conservative majority, and introduced a bill to do so. At the last moment, SCOTUS changed course in West Coast Hotel Co. v. Parrish, allowing the federal government vastly more of the powers that FDR wanted. The court packing plan died, and we have stuck with nine judges ever since.*
So this is the opening salvo by the Dems, as of yet merely a warning shot. Besides, as @ulyssesword put it "win[ing] every election forever" how can Republicans prevent this? What is the potential compromise, or amendment to the structural changes to the court, that can deflate the desire of the Democrats to do this? How can our present Justice Roberts imitate his illustrious predecessor Justice Owen Roberts and make a switch to maintain the peace?
We can talk all we want about sacred institutions, about precedent, about the constitutional order, but if the majority of Americans don't believe in those institutions enough to accept their authority, they are already moribund and just waiting for amputation. How can Republicans in Congress and on SCOTUS currently act to reach a new compromise, or to otherwise restructure the Court in a way that will make the plan either less deadly or less necessary? A compromise, a surrender, a poison pill?
If you believe that, as Vladimir Ilych Liberal wrote, Nothing is to be Done; that the Democratic party is so hell bent on complete tyranny that no compromise is possible, then there's no point bemoaning it, the court is dead. The Republicans will not win every election forever. Swallow the black pill.
But politics is about persuasion, and there aren't going to be a lot of people that need to be persuaded. Leaving aside a solution like "make the institutionalist case more effectively" which seems unlikely. What actions can be taken? I'm not sure I can think of any.
*Additional discussion of the Switch in Time: Arguably at the time, the nine member court was only sixty years old, more recent to them than FDR is to us. That precedent has grown significantly more ancient as a result of FDR's success in changing the direction of the court without packing it. So it was a bit less norm breaking. There is significant dispute as to whether the Switch was motivated by a desire to avoid the court packing plan, whether the Switch lead to the failure of the court packing plan or if it would have failed anyway, and a lot of other aspects of the history around this. I'm providing a thumbnail sketch of the classic story, we can argue about it more if anyone is interested.
**Post Script: I'm not inherently opposed to term limits. They would have multiple salutary effects. I don't think it's good for "death" to be a positive political outcome for anyone, and we should build institutions to avoid it. ((I'll always think there was more to Scalia's death)) It would reduce randomness: it's silly that HW, who won one election before I was born, still has a dead hand on the Court while Clinton, who won the next two, has none. It's a strange system that gives a voice to 1988, but not to 1996. Or that Obama and Biden's combined twelve years in office produced as many justices as Trump's four. It would also halt the race to the bottom on young justices, and allow the appointment of a brilliant jurist with health issues. Currently, the best qualifications aren't brilliant legal theory and talent, they are ideological reliability and a 50 resting heart rate. Increasingly, most justices are chosen with the bare minimum qualifications to pass muster in the Senate (which are themselves declining!) and the youngest age possible. Forget affirmative action, a president is a fool to nominate anyone other than an Asian American Woman, when you nominate a man you're leaving years on the table! The biggest problem with term limits is that introducing them randomly produces a particular set of elections as determinative, the RRRDDRRRD structure means that we know when majorities would turn, and we're stuck with that forever.
And, if we're doing SCOTUS reforms, what I want to see isn't term limits, it is PAGE LIMITS. Old decisions were just a few pages, now we get novels, and the longer they are the worse they are, near universally. The deeper the cuts they need to resort to, the more likely they're pulling a fast one. If you can't justify it in fifteen pages, you can't justify it. If you can't explain it in fifteen pages, you're probably legislating from the bench. Fifteen pages for the majority opinion, five for dissents, three for concurrences.
While I agree here -- if the court does not simply capitulate, the Democrats will keep trying to screw with it -- there is another option, which is that the Robed 9 declare their supremacy openly and strike down the legislation.
It's not clear that the Robed Nine would win in a direct contest of wills with the federal government. If Harris says, we aren't going to listen to any decisions made by an improperly constituted Court, and will ignore them, then what happens? What seems most likely to me there is that Judicial Review is removed from American government going forward, the death of the SCOTUS, with original jurisdiction cases remaining a marginal lacuna to be dealt with in time. Is the alternative a gamble on violent outcomes, or governmental breakdown? I have trouble picturing John Roberts and Brett Kavanaugh signing up for that, though governments have broken over less.
The fun possibility: we might get a SCOTUS Avignon papacy, with two SCOTUSes sitting separately ruling each other illegal, with neither side being determined enough to take violent kinetic action, but simply ignoring each other for decades, with the result being legal chaos until we get a reunification of the belts (presumably) when Republicans win enough elections to claim a majority on the 18-year court or Democrats win enough and Republican justices die enough to get a majority on the lifetime court, at which point the conflict will conclude.
ETA: Thinking about it more, it seems like the decisive vote would shift over time in the current nine. It requires six to sit. Assuming simplistically that the Ds are pro-term limits and the Rs are against, the third term limit appointee would give the term limit court a quorum once the OG Ds show up as well. You could have a situation where first the OG SCOTUS excludes the term limit appointees, and then once the majority shifts the term limit SCOTUS convenes and the remaining OG justices can choose to caucus with them or not.
This is all starting to remind me of the periods in Ottoman history when independent rulers in North Africa paid nominal allegiance but were not under any concrete control.
Note that it recently more-or-less happened in Poland.
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