On July 26, Representative Hank Johnson (D), who represents Georgia, submitted legislation to prohibit lifetime appointments to the Supreme Court. It is proposed in the "Supreme Court Tenure Establishment and Retirement Modernization (TERM) Act" that life tenure be abolished and a system be established in which judges must actively serve for a period of 18 years before becoming eligible for senior status. The bill will be presented to the Senate by Sheldon Whitehouse, a Democrat from Rhode Island. This is an obvious example of partisan political reaction to the court's publication of a string of great decisions during this term, and it is riddled with major constitutional and logical flaws.
Article III, Section 1 of the Constitution of the United Declares specifies that "the Judges… shall hold their Offices during good Behaviour." This section also states that all judicial power is vested in the courts. Since ancient times, this provision has been construed to provide lifetime tenure on Supreme Court justices, provided that they are not removed from office for want of "good behavior."
How, therefore, does Congress believe it can get away with passing legislation that is patently in violation of the Constitution? It goes without saying that the Democrats who have suggested this measure have given some consideration to this matter. After serving for a period of 18 years, a judge is required to be granted senior status under the TERM Act. At this time, he will keep his position as a "Senior Justice," and he will continue to receive compensation, preside over matters in lower courts, and serve on the Supreme Court in the event that there is a vacancy or a conflict with one of the justices who are now serving there.
The proponents of this law believe that by doing so, the constitutional issue will be resolved. If justices are required to retire after 18 years, but they can maintain their job as a senior justice and continue earning compensated, then, according to their reasoning, the Constitution will have been interpreted according to its letter.
It is debatable whether or not the constitutional mandate that a justice "shall hold [his] Office" is satisfied when a justice is coerced into taking a portion of their retirement benefits early. Even though he left his position on the Supreme Court in 2009, Justice David Souter continues to serve as an arbitrator on the First Circuit Court of Appeals. No one would suggest that he is still employed by the Supreme Court as an associate justice at this point.
This strategy of coerced semi-retirement appears to be a work of fiction concocted by communist politicians in order to sidestep the requirements of Article III. It is, at best, questionable to consider forcing judges into retirement in order to pursue fulfilling constitutional wording based on a technicality.
It is necessary to respond to one accusation of bad faith in particular that was made by Johnson during the presentation of the TERM Act. Johnson contends that the legitimacy of the Supreme Court is in question due to the fact that "[f]ive of the six conservative justices on the bench were appointed by presidents who lost the popular vote, and they are now racing to impose their out-of-touch agenda on the American people, who do not want it."
The left is concerned by Johnson's worry of a "radical, unrestrained majority" on the Supreme Court and its "out of touch agenda" because it is believed that the Supreme Court has become more conservative in recent years. Johnson expressed his anxiety in the following way:
The goal of the liberal argument for term limits on the Supreme Court is to bring about "regular turnover on the court and the renewal of democratic consent and input into the process of judicial review." However, this goal is misguided and hazardous. This "renewal of democratic consent" may have a pleasant ring to it, but it is manifestly in conflict with the objectives of the founders of the United States as well as the basic function of the judicial system.
The democratic components of government, in particular the legislature, which is known for its rapid turnover of both its members and the laws, have a propensity to be innovative, to move swiftly in accordance with the most recent trend, and to suppress resistance. To put it another way, this is precisely the rationale behind why the Constitution guarantees life tenure to federal judges.
The deadly attack on the separation of powers, as well as the checks and balances, that is being carried out by the call for "renewal of democratic consent and input into the process of judicial review." The operation of the judiciary is not expected to be subject to the influence of democratic processes on purpose. The function of the judges is to interpret the law, and they are not required to take into account the most recent voter trend or the consensus of public opinion. Maintaining a politicized judiciary and insisting that the Supreme Court be more "in touch" and "with the times" is in direct opposition to the goal of having a judiciary that is free from political influence. In order for judges to effectively carry out their duties, they need to be freed from the restraints of popular opinion.
The TERM Act should be opposed by conservatives because to the fact that it violates the Constitution and makes for poor policy. Additionally, conservatives have a responsibility to ensure that they do not adopt such causes merely because they are politically advantageous. It is important that we grasp the reasoning behind American customs and institutions, respect them, and only alter them when it is absolutely necessary to do so. Impeachment, not the introduction of term limits, is the correct constitutional action to take in order to remove problematic judges from office.
The Supreme Court must maintain its independence from the shifting currents of public opinion at all times.