EDITOR’S NOTE: This piece was originally published in the Spring 2019 Magazine.
Since assuming office in January of 2016, President Donald Trump has radically reshaped the federal judiciary into a haven for conservative, originalist constitutional theory by appointing and confirming with the assistance of the Republican-led Senate a record number of relatively young, conservative nominees. This radical restructuring has become especially prevalent after the successful confirmation of two Supreme Court justices. After a contentious stalemate between the Republican-led Senate and President Obama over Judge Merrick Garland’s nomination, the Trump administration appointed and the Senate confirmed Justice Neil Gorsuch, aged 49, to the Supreme Court. Many conservatives touted his confirmation as President Trump’s seminal achievement of his first year. Almost a year and a half later, after Justice Anthony Kennedy’s announced his retirement, the Trump administration nominated Justice Brett Kavanaugh of the U.S. Court of Appeals, aged 53. However, his nomination almost failed in the wake of disturbing allegations of sexual harassment and assault made against Justice Kavanaugh during his high school years. After several politically and emotionally charged hearings, Kavanaugh became the Trump administration’s second appointee, a clear symbol of the Supreme Court’s ideological shift in favor of conservatism. The relative youth and life tenure on the bench of the Trump administration’s appointments means that Justices Gorsuch and Kavanaugh may shape judicial decision-making well into 2050, a full 26 to 30 years after the Trump administration’s end. Additionally, many political analysts speculate that President Trump could possibly appoint and confirm another Supreme Court justice by the end of his current term due to the advanced age of some of the Court’s current members. As a result of these propitious circumstances for the Trump administration, Democrats and progressive interest groups have cried foul, arguing that the Trump administration has unfairly tilted the Supreme Court in favor of conservative ideology and threatens the future of progressive policy ranging from abortion rights to campaign spending.
Because of the potentially monumental effect the Trump administration has had on reshaping the federal judiciary, legal scholars and politicians alike have renewed the call for term limits to be placed on the Supreme Court. Since 1977, the Republican Party has held the presidency for a total of 22 years, in which time ten justices have been nominated and confirmed. However, the Democratic Party has controlled the presidency for 20 years yet has only appointed and confirmed four justices. Due to this inequitable distribution of Supreme Court justices across administrations, many policy analysts have called for 18-year term-limits on Supreme Court appointments. 18-year term limits are particularly advantageous because the President would appoint a new Supreme Court justice every two years in non-election years, doubly eliminating the element of luck inherent in these nominations and providing an equal opportunity for all presidents to appoint at least two Supreme Court justices. Additionally, 18 years would be long enough to preserve justices’ independence due to the lack of a promotion to higher office and lessened outside pressures. Most importantly, 18-year term limits would ensure that justices would not lose touch with the world outside of the Court, effectively making certain that these justices would reflect current aspects of public opinion. Thus, the primary goal of instituting term limits on Supreme Court justices would be to ensure they reflect current public opinion instead of the political preferences of the majority 30 years ago. However, these reforms would be contrary to the original intention of the Supreme Court: answering pertinent legal issues without being subject to public opinion.
The original architects of the U.S. Constitution proposed life tenure for Supreme Court justices to allow judges to answer legal questions without a twinge of political bias. For the U.S. Constitution’s Framers, life tenure for Supreme Court justices specifically maintained justices’ political independence against the whims of public opinion or the political climate. In the Federalist No. 78, Alexander Hamilton argued that the Supreme Court “should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” Justices were supposed to follow a set procedure for judicial decision-making guided by existing legal precedent. Additionally, life tenure was intended to discourage justices from leaving the bench in pursuit of different political positions or private sector employment due to the prestigious, final nature of the Supreme Court. Finally, these life tenures supposedly strengthened the “weakest branch of government” against congressional and executive authoritative control and discourage political activity among the justices. As a result, the Supreme Court was intended to be an apolitical institution centered upon following legal precedent, shielded from the political duels in Congress and ignorant of special interests.
However, since the ratification of the Constitution in 1789, the Supreme Court has slowly transformed into a more political institution than the Framers of the Constitution could have ever imagined. The President and Congress regularly defer to the Supreme Court to offer a final constitutional decision on controversial issues such as gay marriage, abortion access, and civil liberties. As the ultimate adjudicator between political parties, interest groups, states, and even between branches and departments of the federal government, the Supreme Court is well positioned to fashion monumental policy. As a result, the President and the Senate, as seen during the Gorsuch and Kavanaugh confirmation hearings, have placed ever-increasing importance on appointments to the Supreme Court, turning what should be a routine confirmation process into a highly partisan zero-sum battle. However, despite the increasing partisanship over Supreme Court appointments, term limits, no matter their length, are simply tautological, repetitive, and unnecessary due to institutional constraints already in place in the Constitution and public opinion’s indirect effect on the Supreme Court.
Political science research overwhelmingly agrees that members of the Supreme Court are influenced by a myriad of factors including legal precedent and their own political preferences. However, interestingly enough, political scientists have theorized and provided empirical evidence demonstrating that Supreme Court justices are receptive to external pressures, causing them to re-evaluate their own positions and dissuade them from enacting their most preferred policy preferences. In his seminal 1957 article, “Decision-Making in a Democracy: The Supreme Court as a National Policymaker,” Dr. Robert Dahl, professor of political science at Yale University, argued against the conventional wisdom stating that the Supreme Court was a countermajoritarian branch. Dahl instead argued that the Supreme Court is a majoritarian body still subject to public opinion, albeit indirectly. The President and the Senate are directly elected by the wider public. As the representative of the national majoritarian view, the President nominates a judge to the Supreme Court. The Senate, a majoritarian body with more ideological diversity, can confirm or deny these judges’ a position on the Supreme Court. As a result of this negotiation between the President and the Senate, these judges should be a reflection of the president’s and the Senate’s preferences, and by extension, public opinion. Thus, judges indirectly represent the public’s moods and policy preferences by way of nomination by the President and confirmation by the Senate. According to Dr. Richard Vining, associate professor of political science at the University of Georgia, Dahl’s piece still retains relevance as “turnover on the bench is the primary mechanism that ties courts to public opinion.” However, with justices’ elongated tenures on the Supreme Court, the Court eventually becomes “out of step with the public at a given time,” but this disconnect between the public’s policy preferences and the justices’ policy preferences is temporary. Public opinion and the Supreme Court’s policy usually align within the next few elections as each subsequent President will likely have had the chance to appoint on average two justices according to Dahl. Yet, according to a predictive model by the Harvard Business Review, presidents will appoint only half as many justices in the next 100 years as they did in the last 100 years. Thus, indirect public opinion via turnover will not be as pertinent as the last 100 years, yet will still play an important role in updating the policymaking of the Supreme Court.
However, other empirical research conducted by political scientists has demonstrated the existence of institutional checks and balances on Supreme Court’s policymaking. In their seminal book The Choices Justices Make, Lee Epstein, professor of political science at Washington University in St. Louis, and Jack Knight, professor of law and political science at Duke University, demonstrate the validity of the strategic model of judicial decision-making. Beginning with the assumption that justices, each with their own policy preferences, want to maximize their outcome by enacting their true policy-making preferences, Epstein and Knight argue that justices engage in strategic calculations causing judges to act in a sophisticated manner. In order to maintain their policymaking power, Supreme Court justices reason that they need to maintain a certain amount of institutional legitimacy. This institutional legitimacy becomes threatened when the Supreme Court decides cases against the public mood and, by extension, the President’s preferences and Congress’s preferences. If justices engage in policymaking contrary to the preferences of either the President or Congress, the President and Congress each possess constitutional checks and balances to counter the Supreme Court. Specifically, the President can refuse to act on judicial decisions or carry out these decisions in accordance with their own preferences. On the other hand, Congress can impeach justices and hold control over the Supreme Court’s budget. Most importantly however, the President and Congress can both jointly work together to alter statutory law, law set down by the legislature as opposed to law contained in the U.S. Constitution, to reflect their own policy preferences against the Supreme Court’s interpretation of such a law. Thus, to maintain their institutional legitimacy in the eyes of the public, Congress, and the President, justices must take into account the policy preferences of the public, Congress, and the President to avoid losing their policy-making power. In their book, Epstein and Knight demonstrate that in half of the cases involving governmental actors recorded in the conferences notes and conference memoranda of Justice William J. Brennan, who served from 1956 to 1990, at least one justice explicitly stated his or her beliefs about the preferences or the likely actions of other government actors. Similarly, justices pay attention to how the press reports on issues on their docket as seen in the numerous news articles found in their memos to each other on specific cases as recorded in the personal papers of Justice Brennan. Thus, according to the strategic model and the evidence presented by Drs. Epstein and Knight, the Supreme Court’s opinions are not simplistic decision-making process based upon solely precedent or their own preferences, but are a calculated decision made by weighing the preferences of Congress, the President, and the public. Therefore, even though there may be a majority of one party on the Supreme Court, these opinions of this court may ultimately reflect more of the public’s mood than would be normally perceived. Thus, because the push for term limits essentially arises from a disconnect between the public’s mood and the opinion of Supreme Court justices, the strategic view of Supreme Court decision-making renders term limits unnecessary and irrelevant, retaining both the integrity and continuity of the Constitution.
Even in the presence of evidence indicating the Supreme Court’s willing reception of public mood and the preferences of Congress and the President, the ever-increasing partisanship of the Supreme Court remains. The American public holds the Supreme Court as the ultimate policy-maker, an image that starkly contrasts the Founder’s original intentions. The Supreme Court originally was not a political body, but an apolitical institution adhering to legal doctrines and uninfluenced by personal policy preferences. Thus, to diminish the increasingly partisan nature of the Supreme Court and end the dramatic showmanship of Supreme Court nominations, the American public must experience a dramatic shift in their expectations of the Supreme Court. Additionally, Congress and the President must again assume their constitutional powers of formulating and enacting policy. As a result, justices must be appointed who will absolutely adhere to legal precedent, no matter how liberal or conservative. Judicial decision-making must be as nonpartisan as possible to avoid the polarization and division consuming American society. While this cultural and institutional shift is nearly impossible, American judicial decision-making must be strategic, taking into account not only existing precedent but also balancing public opinion’s effect on precedent.
Sources:
Epstein, Lee and Jack Knight. 1998. The Choices Justices Make. Sage: 1997.
Dahl, Robert A. “Decision-Making in a Democracy: The Supreme Court as a National Policymaker.” Journal of Public Law 6: 279-295.
Interview with Dr. Richard Vining, Associate Professor of Political Science, University of Georgia