This transcript was computer-generated.

[00:00:00] Elie Mystal: Term limits are by far the most popular form of Supreme Court reform. According to a recent poll from the Associated Press, two thirds of Americans favor term limits for Supreme Court Justices. That includes 57% of registered Republicans and a whopping 82% of registered Democrats. We are a nation that cannot agree about whether pineapple belongs on a pizza, but we broadly agree that Supreme Court justices should not serve for life.

[00:00:44] Welcome to Contempt of Court, a podcast from The Nation sponsored by The New Press. I’m Ellie Masal, the Justice Correspondent for The Nation. Today we’ll talk about why the plan everybody likes is the one that doesn’t work. Term limits are the falling in love with a stripper version of court reform.

[00:01:05] They look very good, but it’s difficult to build a better life with them. The core problem with term limits is that they’re brazenly, unconstitutional. Every other reform we’ve talked about in this series or will talk about the constitution either approves of or is silence about, but term limits, nah. The document is specific about that.

[00:01:30] From Article three, section one, the judges, both of the Supreme and inferior courts shall hold their offices during good behavior. The founders were clear that the justices should hold their positions for life and they could only be removed through the constitutional process of impeachment. Moreover, unlike most of the crap they made up while trying to keep an entire race and bondage, The founders had a good reason for wanting judges to serve for life.

[00:02:04] They didn’t want judges thinking about their next job. They didn’t want judges pandering to future paymasters or political interests in search of their next paycheck. It’s notable that in our long history, we’ve only had one Supreme Court, justice Charles Evan Hughes, leave the Supreme Court and run for president.

[00:02:25] It didn’t work out for him. He lost to Woodrow Wilson in 1916. That’s more or less by design. Of course, there is a lot about the Supreme Court, but the founders didn’t anticipate or just flat out got wrong. They didn’t anticipate things like penicillin and smallpox vaccines and a healthcare system that can extend the lives of anybody.

[00:02:48] The Supreme Court allows to have healthcare. They didn’t realize that unelected septics would be making rules that will affect the very habitability of the planet long after the rule makers are dead. They didn’t fully appreciate that the next paycheck wouldn’t require running for higher office, but simply calling up Nazi memorabilia collectors and asking when their super yachts would be around to pick them up.

[00:03:15] Term limits are popular because they make sense. The justices shouldn’t hold unelected power for 30 or 40 years. The balance of the court shouldn’t depend on whether very old people had the good sense to die under the appropriate administration. But first, let’s get into exactly what we mean when we’re talking about term limits and how exactly they might play out in practice.

[00:03:43] To do this, I’m joined by Michigan Law Professor Leah Lipman. Uh, folks, if you don’t know Leah, she is, um, one of, I would argue the more important liberal scholars out there. She’s also one of the co-hosts of the strict scrutiny, uh, podcast. So she’s a, a, a fantastic, um, commentator and broadcaster as well.

[00:04:04] Leah, uh, thank you so much for joining us.

[00:04:07] Leah Litman: Thank you so much for that exceptionally kind introduction and I’m so glad that you are doing this, you know, series podcast on Supreme Court reform.

[00:04:14] Elie Mystal: So term limits are extremely popular in this country and have been, um, for quite some time. They’ve never been brought to the Supreme Court and there are very good reasons, uh uh, for why.

[00:04:27] But let’s first talk kind of conceptually, when we say term limits, what are people actually talking about?

[00:04:35] Leah Litman: So, term limits, as their name suggests, means justices would be appointed. For a limited term rather than, you know, as they are now for indefinite periods, basically subject only to impeachment or their own choice to retire or resign.

[00:04:52] Now, term limits can vary a little bit on what the end of the term looks like. So for example, you could appoint a judge or a justice to an 18 year term at the end of the 18 year term, they’re done, right? They go write some books, they do some podcasts, right? They are no longer in federal office.

[00:05:08] Alternatively, it might be that. For their first 18 years, you know, they are doing the job that now looks like the Supreme Court justice, right? Deciding what cases to hear, sitting with the other nine justices and issuing decisions. And then at the end of the 18 years they do something. Different, maybe there’s a separate docket for justices at the end of their 18 year terms.

[00:05:31] That’s just like original jurisdiction cases. Cases that are filed at the outset of the Supreme Court. Or maybe at that point they can go sit on a court of appeals. Um, but, you know, those are some variations on term limits, but at their court, it just means that it’s only for a finite definite.

[00:05:48] Predetermined period that someone would serve on the Supreme Court, and that way you know when the next vacancy would arise.

[00:05:57] Elie Mystal: The, uh, reason why the, the, the term of 18 years, um, gets bandied about a lot, both when we see actual proposals from Congress or just generally when people are talking about it. Is that, and I haven’t done all the math on this, but if you have an 18 year term limit for nine Supreme Court justices, once that all gets going, that works out to every.

[00:06:22] Four years of president gets to reappoint a different Supreme Court justice. As most people know, um, um, the, the party in power in the White House over the past 30, 40 years has been relatively evenly split, right? We’ve had, you know, x amount of years of Republican presidents, x amount of years of Democratic presidents, and they’re just about equal.

[00:06:44] But the representation on the Supreme Court has been, um, entirely skewed towards the appointees of Republican presidents because of strategic retirements. Untimely deaths, um, and Mitch McConnell, uh, basically deciding to tell the constitution to go jump in a lake and screwing up the entire confirmation process for the rest of time.

[00:07:05] Uh, um, these have have unbalanced the court towards Republican appointees, even though, um, we’ve had a relatively even split of, of, of Republican and democratic presidents. Term limits, 18 year term limits solves that problem. It makes sure that you know, Trump would’ve gotten one. Judge Obama would’ve gotten two judges.

[00:07:26] Biden would’ve gotten one judge. Um, and and so on and so forth. That’s the, that’s. Uh, what’s the constitutional valence of, of such a plan?

[00:07:39] Leah Litman: So there are different possible constitutional issues that might arise depending on how Congress structures the term limits. You know, one of the more aggressive versions of the term limit proposal is Congress comes in and says, you know, Clarence Thomas, John Roberts, Sam Alito.

[00:07:56] You all have been here long enough, your term limit is over, right? You could go sit on the original jurisdiction, docket and court of appeals. Um, and you know, there are now some vacancies on the Supreme Court, right? That will be staggered or possibly appointed over, you know, some particular period. And I think that that version of the proposal is.

[00:08:17] Most vulnerable to constitutional challenges just because it alters the terms of the judge’s office after they have been appointed. And you know, the language of the Constitution says that, you know, federal judges shall serve for good behavior. I. And there is, I think like a really strong constitutional argument that before someone is appointed to their office, Congress can define what that office is.

[00:08:44] But that’s basically what the constitutional challenge looks like, that the language of the Constitution says Justices shall be appointed and serve for good behavior and that good behavior. Means for life. Right? And that the process of impeachment is the only way of ending a Supreme Court justice’s term.

[00:09:01] Um, again, I think the stronger argument is Congress could just set term limits going forward if it wanted, but that would be kind of the landscape in which this argument takes place.

[00:09:11] Elie Mystal: Yeah. The problem with Congress retroactively, uh, in placing term limits is that they end up coming off like Darth va.

[00:09:17] Right. Right.

[00:09:22] That’s what they would be arguing, right? And, and, and that doesn’t, that, that most likely doesn’t work as a constitutional, um, proposition. Every federal court, every federal judge that has the same constitutional, um, protection of being able to serve on the court while in good behavior is subjected to what’s called senior status.

[00:09:42] And that means, and there’s a formula for this that I won’t board you with, at least not in this interview, um, for when judges are able to take senior status and they have to have served on the bench for a number of years and be over a certain age and yada, yada yada. But brass tax is once you reach senior status eligibility, you stay on the federal bench.

[00:10:02] Yep. You continue drawing your taxpayer funded salary. You are still eligible to hear cases that come up to the circuit or court that you are on, but your seat is opened up and it allows the president to appoint a new person to your seat. So you can keep being a federal judge for as long as you feel like being a federal judge, and you can still participate in cases for as long as you feel like participating in cases, but your actual seat is then opened up for a newer.

[00:10:37] Let’s say younger person, um, giving the president and the party in power, a, a chance to use their elected authority to slowly reshape the lower courts. This works. This has been deemed constitutional for every lower court. Leah, why don’t we do it for the Supreme Court?

[00:10:58] Leah Litman: So, We could, um, but again, it would require Congress altering by statute, right?

[00:11:05] The composition of the Supreme Court because by statute this, you know, Congress has said the Supreme Court is nine justices. And so what that means is when a justice like Justice Kennedy or Justice O’Connor retire, They’re no longer kind of in the pool for people who can hear cases on the Supreme Court because Congress by statute said, this court is nine justices.

[00:11:30] Now Congress, if it wanted to, could alter it by statute and say, you know, when a justice resigns, you know they will. Here are cases, let’s say 50% of the time, right? Or 25% of the time if they want, or alter the terms, you know, maybe they only hear original jurisdiction cases, you know, if they would like or whatever the kind of issue is.

[00:11:51] But, um, it’s just that by statute, Congress has set the size of the Supreme Court at nine justices that precludes the retired justices from participating in Supreme Court decisions. Now, some justices have decided, you know, after they retire, To still hear cases, but in, you know, the court of appeals. So, mm, justice Suter, right here’s cases in the First Circuit.

[00:12:14] Um, and that is an option, but because Congress has fixed the size of the Supreme Court by statute, it’s not an option for them to do so at the Supreme Court, given the current composition and structure of the caseload.

[00:12:25] Elie Mystal: Uh, law Professor Leah Lipman, thank you so much for joining me today. I really appreciate all of your insights and commentary.

[00:12:31] Leah Litman: Thank you so much for having me. I really appreciate it.

[00:12:37] Elie Mystal: Term limits are great, but absent a constitutional amendment, they’re never gonna happen. People need to understand this. People need to stop saying, but what about term limits when it comes to Supreme court reform? It’s like looking at a homeless person and saying, have you considered making more money?

[00:12:59] Yes. They know there are structural reasons behind poverty that frustrate the implementation of such helpful advice. And I say that as a person who at absolutely supports term limits. I say that as a person who thinks term limits could be constitutional even without a constitutional amendment. The Constitution says judges have to serve while in good behavior, doesn’t say where they have to serve.

[00:13:28] I think a term limit plan that rotates justices off the Supreme Court, but keeps them employed and happy on the lower circuit courts of appeal would be perfectly constitutional. The problem is I’m not John Roberts. I’m not Neil Gorsuch. I’m not one of the nine people who has decided they have exclusive power to determine what is or is not.

[00:13:52] Constitutional. I’m a bold man, but walking into John Roberts’ house and saying, uh, according to my interpretation of the Constitution, you and at least three of your friends have to leave because you’ve been here for too long. That’s not boldness. It is folly. Term limits are the thing you do. After you’ve done all the other reforms that take power away from these nine unelected rulers, it’s not the low hanging nonpartisan fruit.

[00:14:25] It is the seed for a better future that you replant after you’ve chopped the court out of its current unaccountable treehouse to figure out exactly why that is. Let’s talk to Aaron Belkin, a professor of political science at San Francisco State University. Now, for, for those who don’t know, Aaron is one of the OGs of court reform.

[00:14:47] Aaron’s been in this game, uh, uh, back when really nobody else was. Uh, uh, you know, I, I like to try to tell people who are sometimes, uh, um, annoyed that there doesn’t seem to be more, um, momentum and effort behind, uh, various court reform ideas. You know, guys, Seven years ago, there was no momentum or effort, um, behind court reform ideas.

[00:15:11] Aaron, can you talk a little bit about why it’s so popular? What, what you think are some of the good, uh, motivations behind term limits, uh, for Supreme Court Justices?

[00:15:22] Aaron Belkin: Yeah, I mean, you know, I’ll just briefly flag and I, I, I get that we can circle back to this. I, I term limits is not a real solution and we shouldn’t be talk, we shouldn’t be talking about it.

[00:15:34] Uh uh, um, uh, it’s not wrong. Uh, that, uh, judges and justices, you know, we shouldn’t want them to have lifetime tenure, even though that’s what the constitution, uh, says that they have to have. It’s not wrong that there should be a kind of a, you know, a titrated system in which each president gets to, um, appoint the same number of justices.

[00:15:57] It’s not wrong that the current, um, judicial nomination process is broken. All of that is correct and so, so the logic behind term limits, You know, it’s also seen as a, as a nonpartisan idea. It’s also got a foundation in, you know, kind of decades of prior activism around term limits for electeds. And so, so there’s a lot to be said for term limits on paper.

[00:16:19] Um, and, and, Take back the court, which again, I no longer represent. Mm-hmm. You know, has, has supported term limits and, and, and, and, and when I was part of take back the court, I was willing to go, go along with that support. But given where we are now as a country, we absolutely should not be talking about term limits.

[00:16:38] Elie Mystal: So tell me a little bit about why, uh, uh, one of the, one of the things that, um, I, I know you’ve said in the past, um, that, that jumps out to me is that. The first problem to me with term limits is that it doesn’t solve the immediate problem, which is an out of control six three conservative majority on the court eating people’s rights.

[00:17:00] Aaron Belkin: I mean, we are in a war to save democracy and liberals and Democrats and even some progressives, I believe, have been very slow and, and hesitant to recognize, um, what’s at stake and that we are facing in effect. A fascist movement and fascist means a movement that thrives off. Um, divide and conquer politics.

[00:17:25] Us versus them politics. Injuring, scapegoats, lying. While you do that, we are facing a fascist movement that wants to injure, uh, uh, underprivileged people in this country. Um, All of them, um, at the, you know, to to, to enrich plutocrats and, and, and they are happy to kill democracy. Um, in that process, that is what we were facing.

[00:17:45] And, and the court is a fundamental part of. What we are facing if we wanna save democracy. And so, you know, term limit. So I mean, there’s so many levels at which term limits are, are, are wrong for this moment. Just at the, at the, at the kind of practical level. I, I, I agree with you completely. Term limits will not.

[00:18:07] Moderate the court anytime soon. You know, and, and a moment when democracy is dying and there’s no time left on the, on, on, on the, on the climate clock. We don’t have time to experiment with, with, with, uh, you know, strategies that maybe 20 years from now might have a moderating effect on the court. So, so, so, so at that level, yes.

[00:18:27] Term, term limits is, is, is not the right strategy, but more broadly, term limits comes from term limits. The push for term limits. Comes from a misdiagnosis of what the court is about and what’s at stake and comes from an underdiagnosis of the gravity of the threat and just who we’re dealing

[00:18:46] Elie Mystal: with. Yes. I I mean, I, I, I totally agree with that.

[00:18:49] Um, I, I think, as I’ve heard you say before, um, the problem is also getting the first crack in the wall. Right. But it doesn’t kind of, it, it doesn’t reform the court. It doesn’t rebalance the court, and it kind of locks in the. Illegitimate. Yeah. Oh, uh, politically motivated, uh, ways in which Mitch McConnell took over the court in the first place.

[00:19:11] Why do you think they’re so popular? That

[00:19:14] Aaron Belkin: I blame progressive groups and I blame progressive donors. You know, you know, a lot of people, you know, blame the Democratic party and, and, and, and politicians. Um, you know, Heather McGee taught me an important lesson. She said, you don’t follow polls, you make polls, and sure.

[00:19:32] Um, you know, uh, uh, term limits is, is, is, is, is something that polls well, but, but, but the groups and the donors have not given electeds the cover necessary to tell the story about the court, to explain to the public what’s at stake and why the court needs to be reformed. And so, as long as donors are not funding groups that are willing to tell an accurate story about what’s going on, you can’t expect electeds.

[00:20:01] To, um, you know, to tell the public the right story. And so you have a bit of a vicious circle in which, um, electeds are more comfortable talking about, um, uh, term limits, because that’s already part of the, you know, political discourse going back decades. And, um, and, and, and, and when electeds tell those stories, that has an influence on polls and on public opinion, you know, to the extent that that, that the public follows.

[00:20:27] Thought leadership and the, and the groups are afraid to, you know, uh, tell stories that they, you know, they fear might get the electeds in trouble at the polls. You know, God forbid we should tell a more radical story, um, uh, that could, you know, lose, lose, lose an election. I, I, I, I understand that. But, but, but basically, I, I would argue it, the, the push has gotta come from the donors and the groups who provide a more accurate and a more cutting diagnosis.

[00:20:54] Of what’s at stake. If you do that, then the electeds will follow and then the polls will follow that. I, I understand that in any social justice movement, there are folks who are pushing, you know, more radical, idealistic proposals and then others who are pushing more pragmatic proposals and, and neither side is ever wrong.

[00:21:12] But in this moment, this is not the moment for progressives to play small ball. And to be pragmatic about the court, what we need to do now is move the Overton window, keep telling the story to the public about just how dire situation we are in democracy is at stake. The court is purposefully sabotaging democracy on behalf of plutocrats and on behalf of fascist leaders who wanna injure scapegoats.

[00:21:39] That is, Absolutely clear from the jurisprudence. The court is frankly lying out of its ass to support rulings that make no sense and that are not grounded at any reasonable doctrine. And this is a threat to all of us. You need to move the Overton window on the diagnosis and the solution now. If a few years from now the Democrats have power and there is a serious push to reform the court and there’s not quite enough, uh, you know, capital to get judicial disempowerment through Congress or court expansion or some combination and you need to fall back to term limits for the moment, fine, but you don’t lead with that as you’re negotiating strategy.

[00:22:15] And by negotiating I mean more broadly in terms of the, the story we’re putting forward as a movement. So, so whenever we talk about term limits, now we are neutering ourselves.

[00:22:25] Elie Mystal: Well, I would also argue, Adam, that, and part of the reason why this, um, is. Term limits is actually not the pragmatic solution.

[00:22:36] Right? It, it’s, it’s actually the most difficult thing to do legally because whatever term limit bill you’re gonna pass. Eventually you’re gonna have to go into John Roberts’ house and be like John Roberts. Do you think the Constitution allows for term limits? And John Roberts is gonna say, no, I do not.

[00:22:54] And then where are

[00:22:56] Aaron Belkin: I? I think we have to be sober in acknowledging that. Any judicial reform statute that Congress passes, even if it is obviously constitutional, like court expansion. Um, the group of, uh, you know, uh, the super majority on the court is not going to, uh, look favorably on any judicial reform bill and, and, and, and progressives and Democrats and liberals are gonna have to figure out a way to design around that.

[00:23:24] Um, that having been said, uh, term limits. Is among the most constitutionally suspect of the judicial reform prospect, and also pragmatically gives the Roberts court the greatest opportunity to strike it down because the length of time between when you pass the term limits bill and some, you know, in future 10 years from now, at which point the court is p potentially modified, is so broad that the court is gonna have a very long time in which to, in which to destroy a, a term on

[00:23:53] Elie Mystal: a bill.

[00:23:54] Aaron, thank you so much for your time.

[00:23:56] Aaron Belkin: Thank you so, so much for having me on your show.

[00:24:03] Elie Mystal: Have you ever tried to place a radio collar on an elephant? I mean, I haven’t because that shit looks dangerous, but I’ve seen them do it on National Geographic. There’s an order of operations to the thing. You never see a guy vault on top of an elephant. Wrestle it to the ground like safari, legas, and strap a collar on the thing.

[00:24:27] Instead, they stay far away from the elephant. Shoot it with weapons, sprayed tranquilizer darts until it falls asleep, restrain it, and then place the collar on it. If you do it in the wrong order, you end up with a naked elephant and a radio collar shoved up your ass. When it comes to the Supreme Court Court expansion is the tranquilizer dart.

[00:24:55] Adding justices to the Supreme Court is the thing that subdues the violent conservatives and allows the experts to do their work. If you want term limits, you have to get a majority of justices that support term limits. There’s really no other way. Remember that next time C n N finds you in a diner and asks your opinion.

[00:25:19] If you support term limits but don’t also support court expansion, then you really support nothing. Wishes and rainbows are not gonna get the job done. Next week, we’re gonna take a break from talking about how we’d like the court to be and return to the issue of what the court actually is. If you’ve only listened to straight white men and the stories they tell, you’ve perhaps heard that the Supreme Court ended this year’s term On a more moderate note, they did not.

[00:25:52] Next week we’ll talk about why so many in the media. Are lying to you.

[00:26:01] Contempt of Court is an original series from the Nation with support from the New Press. The show was produced by Bette Thomas, an executive produced by Ludwig Hurtado. Our original music was made by Ellington Pete.