House Democrats, desperate to weaken the impact of President Donald Trump’s appointment to replace the late Supreme Court Justice Ruth Bader Ginsburg, are crafting a bill to remake the Supreme Court, limiting justices’ tenures to 18 years. While the measure avoids the more radical strategy of packing the Court by adding new justices, it would still change the way the Supreme Court operates.
Democrats are framing the bill as a bid to “reduce partisan warring over vacancies and preserve the court’s legacy,” Reuters reported.
“It would save the country a lot of agony and help lower the temperature over fights for the court that go to the fault lines of cultural issues and is one of the primary things tearing at our social fabric,” Rep. Ro Khanna (D-Calif.) told Reuters. Khana plans to introduce the bill next Tuesday, along with Reps. Joe Kennedy III (D-Mass.) and Don Beyer (D-Va.).
The Constitution sets no term limit on federal judges or Supreme Court justices — they serve for lifetime appointments. Partially due to rising life expectancy, justices serve increasingly long tenures, now on average more than 25 years.
Legal observers, even those who favor Supreme Court term limits, argue that any such limits would require a constitutional amendment. The bill — the Supreme Court Term Limits and Regular Appointments Act — seeks to avoid constitutional concerns by exempting current justices from the 18-year rule. Future justices would become “senior” upon retirement and rotate to the lower courts.
“That’s perfectly consistent with their judicial independence and having a lifetime salary and a lifetime appointment,” Khanna argued.
Under the new system, every president would end up nominating roughly two justices in each four-year term.
The bill does not just represent a well-intentioned effort to reform a divisive system, however. Democrats have proposed this measure in order to counter President Donald Trump’s appointment of three justices in his four-year term, especially after Ginsburg’s death.
Trump won the 2016 election in part because he released a list of potential Supreme Court nominees — originalists vetted by the Federalist Society. Trump selected originalists because left-leaning justices have historically reinterpreted the Constitution in order to further their interests, often effectively making law by “discovering” “new rights” in the text.
America’s polarization has weakened the federal government’s ability to compromise and make law through Congress. The Constitution gave the most consequential federal power to Congress, not to the Supreme Court. Yet Chief Justice John Marshall argued that it was the Supreme Court’s prerogative to interpret the Constitution. Under the influence of the Progressive movement, Congress delegated much of its lawmaking power to the executive branch and federal agencies.
Over the last 70 years, the Supreme Court adopted a “living Constitution” model by which it unilaterally amended the Constitution in order to advance certain causes. Perhaps the most notable abuse is Roe v. Wade (1973), in which the Court twisted the 14th Amendment in order to “find” a right to abortion and strike down state laws on the killing of unborn babies in the womb. Nevermind the fact that the 14th Amendment does not mention abortion. Nevermind that when Congress passed the 14th Amendment, America was tightening abortion laws, not loosening them.
If the Founders had wanted the Supreme Court to unilaterally revise the Constitution, they would not have explicitly laid out a process by which the American people can amend the Constitution (Article V).
Trump’s Supreme Court justices and his forthcoming nominee represent a historic victory in restraining that “living Constitution” doctrine in favor of originalism — abiding by the original public meaning of the Constitution and the laws at the time they were passed.
Under the “living Constitution,” Democrats did not need to convince Congress to pass and the president to sign radical abortion laws, the way the Founders intended such legislation to be enacted. They did not need to pass a constitutional amendment writing abortion into the Constitution. They could rely on activist justices to reinterpret the Constitution to invent a right to abortion. Never mind the fact that when states made their own laws on abortion, that was more democratic — it represented the people of those states more accurately.
Leftists have used the Court to unilaterally enshrine abortion as a right, to redefine marriage in federal law, and even to twist “discrimination on the basis of sex” to mean “discrimination on gender identity.”
Originalism is not about guaranteeing that Republican goals and conservative values win at the Supreme Court — it is about guaranteeing that justices uphold the Constitution, not reinterpret it to force newly invented “rights” down Americans’ throats.
Democrats’ belated attempts to remake the Supreme Court in their image are little more than a temper tantrum after the death of Justice Ruth Bader Ginsburg. Democrats are terrified that they are losing the “living Constitution” model — a model that shifted the ground in their favor for decades. Now that Trump is restoring basic sanity to the Court, Democrats want to remake it.
This 18-year term limit bill is just the most recent example. Multiple Democrats have threatened to “pack” the Supreme Court by adding new justices should Joe Biden win the election. For his part, Biden has refused to rule out packing the Court.
As antifa and Black Lives Matter rioters wreak havoc in American cities, Democrats are trying to change the rules of how American politics works, in order to guarantee them more power.
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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.