The new legislation, sponsored by Senators Sheldon Whitehouse (D-Rhode Island), Cory Booker (D-New Jersey), Richard Blumenthal (D-Connecticut), and Alex Padilla (D-California), is called the Supreme Court Biennial Appointments and Term Limits Act. A number of Democratic senators have signed on as co-sponsors of the bill. It has not yet been endorsed by any Republicans.
The bill would require new appointments to the Supreme Court every two years, as opposed to the current process that only requires new appointments when there is a vacancy on the nine-member bench. Justices would still serve lifetime appointments, but the bill would limit the kind of cases a member of the Court can take part in after 18 years.
The Supreme Court hears two different types of cases: those that originate from appellate courts, and others called “original jurisdiction” cases, which do not go through appellate courts but rather begin at the Supreme Court itself. Those cases typically involve disputes between the states, or disputes that relate to foreign officials and the U.S. government.
Under the new legislation, only the nine most recently selected justices could take part in cases involving appeals from lower courts, while all living justices of the Supreme Court could take part in the original jurisdiction cases. If nine justices aren’t available to hear appellate court cases, one of the justices who have served beyond their 18-year limit could substitute until a replacement is named.
The bill could alleviate many concerns about the current way the Court is maintained. To some degree, it could remove politics from the process of appointing justices by making it less likely that lawmakers will launch efforts to stonewall presidential nominations, like the effort against Merrick Garland, then-nominee of President Barack Obama, in 2016.
That action resulted in President Donald Trump being able to appoint at least one more Supreme Court justice than he should have been able to, critics contend, resulting in an extremist bench that leans to the far right and a slew of unpopular right-wing rulings ever since.
“An organized scheme by right-wing special interests to capture and control the Supreme Court, aided by gobs of billionaire dark money flowing through the confirmation process and judicial lobbying, has resulted in an unaccountable Court out of step with the American people,” Whitehouse, who is chair of the Senate Judiciary Courts Subcommittee, said in promoting the new bill. “Term limits and biennial appointments would make the Court more representative of the public and lower the stakes of each justice’s appointment, while preserving constitutional protections for judicial independence.”
“The Supreme Court is facing a crisis of legitimacy that is exacerbated by radical decisions at odds with established legal precedent, ethical lapses of sitting justices, and politicization of the confirmation process,” Booker said.
“Setting term limits for Supreme Court justices will restore accountability and depoliticize the confirmation process, and term limits are a commonsense change that an overwhelming majority of Americans support,” the New Jersey senator added.
Polling demonstrates that Americans are ready for fundamental changes to the nation’s highest court, particularly regarding how long a justice can serve. Although the survey didn’t ask for an exact number of years, a Politico/Morning Consult poll from September found that nearly 7 in 10 Americans (69 percent) approve of the idea of limited tenure for Supreme Court justices. Only 18 percent disapproved of the idea.
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