Senators Sheldon Whitehouse (D-RI), Cory Booker (D-NJ), Richard Blumenthal (D-CT), and Alex Padilla (D-CA) today introduced new legislation, the Supreme Court Biennial Appointments and Term Limits Act, to establish 18-year term limits and regularized appointments for Supreme Court justices. Senators Mazie Hirono (D-HI), Jeff Merkley (D-OR), Peter Welch (D-VT), and Brian Schatz (D-HI) also cosponsored the legislation.
Under the senators’ legislation, a new justice would take the bench every two years and spend 18 years participating in all Supreme Court cases, after which the justice would be limited to hearing a small number of constitutionally required cases.
“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. 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,” said Senator Whitehouse, Chairman of the Senate Judiciary Courts Subcommittee. “As Congress considers multiple options to restore the integrity of this scandal-plagued Court, our term limits bill should be front and center as a potential solution.”
“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,” said Senator Booker. “This crisis has eroded faith and confidence in our nation’s highest court. Fundamental reform is necessary to address this crisis and restore trust in the institution. 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. I’m proud to stand with my colleagues to champion this effort.”
“Term limits will help restore credibility and trust to our nation’s highest court. This proposal is simple and fair: each President, elected by the American people, will appoint two Supreme Court justices for each term. Our bill strips out the toxic politics, partisan obstruction, and retirement gamesmanship that have eroded public trust, not just in the Supreme Court, but in our entire system of justice. Detached from the public and more politicized than ever, the Supreme Court will continue to face a crisis of legitimacy without this kind of fundamental reform,” said Senator Blumenthal.
“It shouldn’t be controversial to say that the American people deserve a Supreme Court insulated from politics. But when every confirmation turns into an all-out partisan battle, or when one administration alone can overturn a lifetime of precedent, it’s clear: the Court has lost its way,” said Senator Padilla. “By imposing commonsense term limits, we can lower the temperature on political brinksmanship and start to restore trust in the highest court in our land.”
The Constitution requires that Supreme Court justices hear a small number of cases under the Court’s “original jurisdiction.” These cases include a narrow category of disputes between states or foreign officials in which the Court is the first and only venue where the case is heard. All justices would continue to hear original jurisdiction cases under the Act.
The vast majority of the cases the Court hears are brought under the Court’s “appellate jurisdiction”—cases decided by lower courts that are appealed to the Supreme Court. These include major cases like Dobbs v. Jackson Women’s Health Organization, Shelby County v. Holder, and Citizens United v. FEC.
The Constitution makes clear that the Supreme Court’s “appellate jurisdiction” is subject to any “Exceptions” or “Regulations as the Congress shall make.” Congress has long used this authority to adjust the Supreme Court’s jurisdiction.
Under the Supreme Court Biennial Appointments and Term Limits Act, only the nine most recently appointed justices would sit for appellate jurisdiction cases. The justices who no longer hear appellate jurisdiction cases would retain the authority to hear original jurisdiction cases and to exercise all other powers of the office. If one of the justices who regularly hears appellate jurisdiction cases has a conflict of interest or is otherwise unavailable to hear a case, another justice who hears only original jurisdiction cases may fill in.
The legislation also creates regular appointments of Supreme Court justices every two years by requiring the president, within the first 120 days of the first and third years of the president’s term, to appoint one Supreme Court justice, by and with the advice and consent of the Senate.
The Brennan Center for Justice, Public Citizen, Citizens for Responsibility and Ethics in Washington (CREW), Project on Government Oversight (POGO), Alliance for Justice, End Citizens United/Let America Vote Action Fund, Demand Justice, Newtown Action Alliance, True North Research, and Accountable.US endorsed the legislation.
“Public trust in the Supreme Court has fallen to the lowest level recorded. Term limits would help restore trust. They are rooted in a core American value: no one should have too much public power for this long. Americans of all views support Supreme Court term limits, and members of Congress from both parties should work to make Supreme Court term limits a reality,” said Michael Waldman, President and CEO, Brennan Center for Justice.
“The Founders never envisioned the courts to serve much more than an administrative purpose. But the Supreme Court has now evolved into the most powerful branch of government, dictating what is and is not constitutional, with no oversight and no popular reprieve. Political partisans who cannot win at the polls have tapped into this and stacked the unaccountable court in their favor. Public Citizen wholly endorses this legislation that would help restore the balance of power between the three branches of government,” said Craig Holman, Ph.D., Public Citizen.
“Serious and repeated allegations of ethical misconduct at the Supreme Court have undermined public faith in the judiciary. This self-inflicted crisis has led the Court to its lowest approval rating since Gallup started polling the question, raising serious concerns as to if the Supreme Court’s credibility can survive without meaningful reform,” said Debra Perlin, Policy Director at CREW. “The Supreme Court Biennial Appointments and Term Limits Act of 2023 is a strong response to this crisis. It uses the Court’s jurisdiction to create term limits for Supreme Court justices and permits those justices whose terms have ended to retain their seats in a senior status position. This legislation could help both to end partisan manipulation of the Court’s composition and to reduce ethics problems among justices. CREW commends Sens. Whitehouse, Booker, Blumenthal, and Padilla for continuing to lead the charge on the need to address Supreme Court ethics and introducing this crucial piece of legislation.”
“Supreme Court justices hold too much power for too long. A single 18-year term limit is a reasonable and necessary step to address this central problem with an unaccountable court. This legislation could also help reduce the incentive to play politics with the court by ending the unpredictable and lengthy terms that justices presently enjoy. We applaud Senators Whitehouse, Booker, Blumenthal, Padilla, Hirono, Merkley, Welch, and Schatz for introducing this sensible bill to limit Supreme Court terms – a solution that the vast majority of the American public supports. This is an idea whose time has come,” said Sarah Turberville, Director of The Constitution Project at POGO.
“The Court is more politicized than ever,” said Rakim Brooks, president of Alliance for Justice. “Justices enjoy lavish rewards from conservative billionaires and yet we’re supposed to pretend their decisions are neutral and in the public interest. Term limits are a necessary corrective to this sad state. The founders never intended that judges would serve until their dying breath. If they saw this bunch, I’m sure they’d scream, ‘Term Limits Now!’”
“The Supreme Court is in a state of crisis—without common sense reform, the court will continue to work against the American people and undermine our democracy,” said Tiffany Muller, President of End Citizens United // Let America Vote Action Fund. “Limiting justices’ time on the bench is a necessary step in bringing about accountability and rebuilding Americans’ confidence in the Supreme Court. We’re grateful for Senators Whitehouse, Booker, Blumenthal, and Padilla’s continued leadership in the fight to reform the Supreme Court.”
“This change is vital to restoring public confidence in the independence of the Court. I hope it will also lead to the selection of justices who have more experience demonstrating their ability to be fair as a judge rather than demonstrating to Leonard Leo that they are young ideologues aligned with his extreme agenda to limit our freedoms and reverse important precedents,” said Lisa Graves, Executive Director of True North Research.
“The Supreme Court is facing a serious legitimacy crisis. Justices’ countless ethics violations — from undisclosed lavish gifts to influence-peddling in elite circles — have caused public trust in the Court to plummet to record lows. The Supreme Court Biennial Appointments and Term Limits Act is a necessary step forward in restoring integrity and credibility to our high court. Accountable.US is proud to support Senators Whitehouse, Booker, Blumenthal and Padilla’s critical legislation to ensure that our Supreme Court answers to everyday Americans, not billionaire buddies,” said Accountable.US President Caroline Ciccone.
Americans’ rapidly declining trust and approval in the Supreme Court is the result of an effort by far-right billionaires and special interests to capture and control the Court. The justices selected and ushered onto the Court by these special interests have repeatedly greenlighted donor-friendly policies, reshaping American life in ways that are out of step with the American people. The cozy relationship between right-wing justices and Republican billionaire donors has been exposed by a series of explosive reports from ProPublica, The New York Times, Politico, and other media organizations on the ethics-free zone around the Court. The Supreme Court Biennial Appointments and Term Limits Act is an effort to depoliticize the appointment of Supreme Court justices and ensure the Court is more accountable to the American people.
The United States is one of just five countries with life tenure for its highest court. The American people strongly favor making the Supreme Court more representative of and accountable to the public. Recent polling shows that two-thirds of Americans support term limits for Supreme Court justices. There is also widespread support for de-politicizing the Supreme Court confirmation process, which is worsened when some presidents can appoint multiple justices while others appoint none.
Whitehouse has long been the Senate’s leading voice for improving transparency and accountability at the Supreme Court. In July, the Senate Judiciary Committee passed Whitehouse’s Supreme Court Ethics, Recusal, and Transparency Act, legislation that would require the justices to adopt a code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, and improve disclosure and transparency at the Court.
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