The long-shot proposal by Sen. Peter Welch (D-Vermont) and outgoing Sen. Joe Manchin III (I-West Virginia) would impose 18-year term limits on new justices.
Two senators have introduced a constitutional amendment that would establish term limits for Supreme Court justices, a long-shot escalation of the congressional effort to overhaul the nation’s highest court amid multiple ethics scandals and sinking public approval.
The amendment — introduced Thursday by Sen. Peter Welch (D-Vermont) and outgoing Sen. Joe Manchin III (I-West Virginia) — would impose 18-year term limits on new justices appointed to the court, so eventually there would be a new opening about every two years.
Welch, a member of the Senate Judiciary Committee, said the goal of the amendment is to restore confidence in the high court and promote judicial independence. “Most people see the court as political. In fact, I do as well,” he said. “The question is, ‘How can we restore confidence?’”
Thursday’s joint resolution is the latest and most ambitious step in the years-long effort to make substantive changes to the Supreme Court following outrage over ethics scandals involving Justices Clarence Thomas and Samuel A. Alito Jr. and rulings from the 6-3 conservative supermajority that have overturned legal precedent.
President Joe Biden is among those who have joined the effort to reform the court. Over the summer, he called for 18-year term limits and backed legislation that would create an enforceable ethics code for the justices. While Biden’s term-limits proposal is conceptually similar to Welch’s and Manchin’s, it does not specify whether the reform should take the form of a constitutional amendment or a legal statute.
About two-thirds of Americans support imposing term limits on the justices, according to the results of the Annenberg Constitution Day Civics Survey released in September.
Manchin, who has also called for term limits for members of Congress, said the regular appointments would inject new energy into the court. He called the amendment a necessary “shot of adrenaline” on a court where the lifetime appointments can lead to tenures of three decades or more.
“Times are changing. We need people from different iterations of life,” he said. “You want to make sure you’re keeping up with the judges that understand the culture.”
Welch and Manchin’s constitutional amendment faces long odds and, at least for now, an abbreviated timeline. Constitutional amendments require approval from two-thirds of the House and Senate, and subsequent ratification by three-fourths of the states or by a convention of two-thirds of the state legislatures. Only 27 amendments have been ratified throughout U.S. history, most recently in 1992. That amendment prevents Congress from changing lawmakers’ salaries between elections.
The issue of whether and how to change the Supreme Court is deeply polarizing along partisan lines, with many Democrats demanding change in recent years and most Republicans dismissing those demands as efforts to stop the court’s shift to the right. In addition, the Senate has directed all of its energy during the lame-duck session toward confirming as many of Biden’s judicial nominees as possible, while the House is focused on passing a short-term spending bill. Congress is scheduled to recess for the holidays on Dec. 20 and return on Jan. 3 to be sworn in for a new term.
Welch, who acknowledged that the amendment “won’t go anywhere this year,” said the measure is an opportunity for him and Manchin to launch a debate over Supreme Court term limits.
Welch also said the amendment would end the politicization of the nominating process, referring to then-Senate Majority Leader Mitch McConnell’s decision in 2016 to block President Barack Obama’s pick to replace the late justice Antonin Scalia.
About 10 months later, after Donald Trump was elected, McConnell (R-Kentucky) allowed him to nominate Neil M. Gorsuch to the seat, maintaining the court’s 5-4 conservative split.
The Republican-led Senate would go on to confirm two more of Trump’s nominees — Brett M. Kavanaugh and Amy Coney Barrett — creating a 6-3 conservative supermajority. That majority has overturned Roe v. Wade, ended race-conscious affirmative action in college admissions, expanded presidential immunity for official acts and weakened the regulatory power of federal agencies.
“From a partisan standpoint that worked for the Republicans,” Welch said. “From the judicial integrity and respect for the court as an impartial decision-maker — it did a lot of damage.”
Public trust in the Supreme Court has fallen since the justices struck down Roe in 2022, eliminating the constitutional right to an abortion. About 4 in 10 Americans said they have hardly any confidence in the court, and 7 in 10 said they believe the justices’ decisions are motivated by ideology, not fairness and impartiality, according to a June poll from the Associated Press-NORC Center for Public Affairs Research.
Congressional Democrats have held hearings, proposed legislation and introduced articles of impeachment that, in their view, would hold the Supreme Court accountable. None of those efforts have gained support from Republicans, however.
Sen. Sheldon Whitehouse (D-Rhode Island), the chairman of the subcommittee that oversees the federal courts, is the lead sponsor of the Supreme Court Biennial Appointments and Term Limits Act, which would alsocreate 18-year terms, adding a new justice to the bench every two years. Reps. Ro Khanna (D-California) and Don Beyer (D-Virginia) introduced a similar term-limits bill in the House.
But Welch, who co-sponsored Whitehouse’s bill, said he and Manchin decided to introduce a constitutional amendment because it cannot be challenged in federal court. If Congress passed term limits legislation, instead of an amendment, challenges to that law’s constitutionality could be heard by the very justices affected by the bill.
The proposed amendment would not affect the tenure of the nine sitting justices or change the overall number of justices on the court. It offers a complex formula for a transition period so the justices on the court when the amendment is ratified could each serve as long as they wanted. Their successors would serve terms that would be staggered, with one term expiring every two years.
The amendment would also significantly affect the institution of the chief justice, who oversees the federal court system and acts as the most senior justice. Under the new measure, the role of the chief justice would become a rotating position. Once the chief justice’s 18-year term is complete, the most senior remaining justice would become chief justice, retiring after two more years and yielding to the next person in line.
Manchin, who hails from a red state, is a former Democrat who still caucuses with the party but often blocked Democratic initiatives that lacked bipartisan support.He said he joined Welch, a left-leaning Democrat from Vermont, to introduce the amendment becausehe has always pushed for term limits for Supreme Court justices and plans to do so after he leaves Congress.
“This is not a progressive idea,” Manchin said.
If every president gets the chance to nominate two justices to the bench for 18-year term limits, then the justices won’t “be caught in the whims and wishes of the parties,” he added. “‘Whose side are you on?’ Judges only have one side, the American side.”
Story Written by Tobi Raji, Washington Post
Story Link: https://www.washingtonpost.com/politics/2024/12/07/supreme-court-term-limits-amendment-manchin-welch/