Presidential Commission on the Supreme Court of the United States
democratic elections over time. Proposals for staggered eighteen-year terms, for example, discussed in detail in Parts III and IV, would ensure that all Presidents have the opportunity to appoint two Justices to the Supreme Court in each term they serve. This predictability, proponents argue, would strike a more appropriate balance than the current system between two important features of our constitutional system of checks and balances: judicial independence on the one hand and long-term responsiveness of the judiciary to our democratic system of representation on the other.
By providing for tenure during “good Behaviour,” Article III of the Constitution provides judges with independence from direct and inappropriate external pressures and political influence when they interpret laws, review executive actions and administrative regulations, and consider the constitutionality of state and federal legislation.[12] Article II of the Constitution authorizes the elected branches to affect the composition of the judiciary through appointments over time; the Constitution gives the President and Senate power over appointments to the federal judiciary, and it gives Congress power over the structure and jurisdiction of the federal courts. Proponents of term limits emphasize that the influence of elections on the composition of the Court and its work is thus indirect, but that it is nevertheless an important element of the constitutional system. From the perspective of those who urge term limits, these various provisions of the Constitution aim to make the individual members of the judiciary independent at any given point in time, but the composition of the judiciary as a whole responsive over time to the people’s will, as expressed through its electoral decisions about who occupies the presidency and the Senate.
Proponents of term limits contend that the reform would better strike this balance than the current system in two respects. Long fixed terms, such as terms of eighteen years, coupled with post-service guarantees of financial security, would insulate individual Justices from political pressure and financial temptation and function as effectively as life tenure to safeguard judicial independence. At the same time, such fixed terms enable democratic majorities, as reflected in who is elected to the presidency and the Senate, to have the same or a roughly equal opportunity to influence who sits on the Supreme Court through new nominations—an objective that is poorly served by the current system of life tenure. Relatedly, proponents stress, lifetime tenure does not comport with the ideal of limited government authority. The nine individuals who sit on the Supreme Court wield extraordinary power over critical social and political questions, often for several decades. Though judicial independence requires them to be insulated from the same forms of accountability imposed on the political branches, life tenure arguably arrogates too much power to single individuals.
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