Seeking a "regular, fair process that doesn't reshape the court for decades at a time," Rep. Ro Khanna on Friday announced legislation to "fundamentally reframe the power" of the U.S. Supreme Court by establishing 18-year term limits for justices and allowing presidents to nominate two new appointees per four-year term.
"We can't face a national crisis every time a vacancy occurs on the Supreme Court," said Rep. Khanna (D-Calif.) while announcing the Supreme Court Term Limits and Regular Appointments Act (pdf).
We can’t face a national crisis every time there's a SCOTUS vacancy.
I’m introducing a bill to impose 18yr term limits on future Justices. Long enough to influence judicial trends but not so entrenched. Every president appoints 2 per term.
— Rep. Ro Khanna (@RepRoKhanna) September 25, 2020
The new bill, whose original House co-sponsors are Reps. Don Beyer (D-Va.) and Joe Kennedy III (D-Mass.), comes as President Donald Trump and Senate Republicans rush to appoint the third associate justice of the president's term following the death last Friday of Justice Ruth Bader Ginsburg, who served on the court for 27 years.
The replacement of the reliably liberal Ginsburg with yet another right-wing justice could, if successful, steer the court in a dramatically more conservative direction for decades. Such a shift would threaten—among other things—women's reproductive rights, efforts to fight catastrophic global heating, Americans' access to healthcare, and efforts to protect U.S. democracy from growing corporate power bolstered by rulings like 2010's Citizens United v. Federal Election Commission.
"Our country's top constitutional questions shouldn't be decided by a panel of jurists who are biding their time until a president of their choice is elected."
—Rep. Ro Khanna
"No justice should feel the weight of an entire country on their shoulders," Khanna added. "No president should be able to shift the ideology of our highest judicial body by mere chance. Most importantly, our country's top constitutional questions shouldn't be decided by a panel of jurists who are biding their time until a president of their choice is elected. It's time to standardize and democratize the Supreme Court."
Khanna noted Friday that Republican presidents have occupied the White House for 24 of the past 44 years, appointing 15 justices to the high court, while Democrats, who have held the presidency for just 20 years during that same period, have appointed just four justices.
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This will be the first time that SCOTUS term limits have been proposed via legislation rather than by constitutional amendment. Advocates say such a measure could pass with simple majority votes in both houses of Congress instead of being subjected to a lengthy and uncertain amendment process.
However, some legal scholars—including some who support term limits—argue that implementing such limits can only be accomplished by constitutional amendment.
Khanna's bill seeks to avoid constitutional issues by exempting current justices, and by allowing termed-out Supreme Court justices to complete their lifetime appointments to the federal judiciary by serving on lower courts. This is already allowed—since retiring in 2009, Justice David Souter has heard over 400 cases on a Boston federal appeals court.
Both liberal and conservative justices—including current SCOTUS Associate Justices Elena Kagan and Stephen Breyer, and Chief Justice John Roberts—as well as many legal scholars support term limits.
Let me start with a broad context point, the same point I raised when Justice Scalia died four years ago: It's exceedingly odd that US politics hinges so much on how long a single octogenarian lives. We should have SCOTUS term limits, not life tenure. https://t.co/1tLYJ30lth
— Orin Kerr (@OrinKerr) September 19, 2020
Many SCOTUS reform advocates welcomed news of Khanna's bill.
NEW: As the nation prepares for another contentious Supreme Court nomination, I spoke w @gabe_roth of Fix the Court, who calls for more security for the justices. @Newsy also confirmed a 2017 threat on a justice, likely Sonia Sotomayor. Full story: https://t.co/2PPbk01AFV pic.twitter.com/MpWwJOJM0O
— Sasha Ingber (@SashaIngber) September 23, 2020
"For the first time in U.S. history, statutory language has been introduced to accomplish what court-watchers have been saying for ages: on Supreme Court appointments, we must do better," said Gabe Roth, executive director of the advocacy group Fix the Court. "A standard appointment process, where future justices serve for a reasonable amount of time, is that better way—and one that liberals and conservatives already agree on."