Less than a week after the Supreme Court’s landmark rulings on same-sex marriage and health care, Sen. Ted Cruz came out swinging against the court – proposing a constitutional amendment designed to hold justices accountable through judicial elections every eight years.
A backlash was perhaps not surprising from the conservative Texas Republican, coming in the wake of two rulings that were widely praised by liberals.
But for those who would dismiss his action as a futile, knee-jerk reaction to the rulings, he is not alone in a desire for court reform – with several recent polls showing a majority of Americans supporting term limits for Supreme Court justices. Lawmakers debated the topic at a Senate hearing this week, questioning whether the court had overstepped its bounds with recent decisions.
“This past term, the court crossed a line and continued its long descent into lawlessness to a level that I believe demands action,” Cruz said at the hearing on Wednesday. He said the justices had abused their position by letting political opinions, rather than legal reasoning, guide their work.
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His claims were not well-received by Democrats, who countered that there is often disagreement over important Supreme Court rulings. They said the recent decisions were appropriate interpretations of the Constitution, rather than displays of partisanship.
“We cannot decry judicial activism and create a constitutional crisis every time that a big case comes out against us,” said Sen. Chris Coons, a Delaware Democrat.
Although this year’s rulings have put the question of the court’s political power in the spotlight recently, the discussion is not new. Concern over judicial activism waxes and wanes as the court makes decisions that are celebrated by one party vs. the other.
“Judicial activism is simply a label for decisions that we don’t like. . . . Both liberals and conservatives sometimes favor activism and sometimes favor restraint,” said Erwin Chemerinsky, dean of the University of California, Irvine, School of Law. “They just disagree as to when.”
On Wednesday, senators focused more on the question of whether or not the court abused its power this year than on specific possibilities for reform.
A number of experts have criticized Cruz’s proposal of judicial elections, saying that such a practice would threaten the independence of the court.
The elections would “pose a continuous threat,” Duke University law professor Neil Siegel said at Wednesday’s hearing. “The whole point of having a Supreme Court is to enable it to exercise independent judgment, which typically means that it will help one’s own causes at certain times and will help the causes of one’s opponents at other times.”
But term limits for justices, another reform favored by Cruz, are supported by a number of constitutional law experts and, increasingly, the American public.
A Reuters poll released earlier this week found that a majority of Americans support term limits for Supreme Court justices. The desire cuts across party lines, the poll found – with 74 percent of Republicans, 66 percent of Democrats and 68 percent of independents saying they favored the idea of a 10-year term limit. A Fox News poll earlier this month showed similar results.
“It shows that it’s not reactionary, the fact that it’s bipartisan,” said Gabe Roth, executive director of Fix The Court, a nonpartisan organization that supports changes to the Supreme Court, including term limits. “It’s not a reaction to a specific decision the court has made.”
People are realizing that the court – whether it be through health care, who you can marry, who votes – is making decisions that affect all of us.
Gabe Roth of Fix The Court, supports term limits for the Supreme Court
Under the current system, justices serve for life after being appointed by the president, leaving the position only when they choose to retire, die or are impeached.
The idea of term limits has been a subject of debate among legal scholars, with several high-profile papers on the subject published in legal journals throughout the past decade. Proposals for 10- and 18-year terms have especially garnered interest.
Advocates of term limits say that the authors of the Constitution weren’t envisioning a future in which Supreme Court justices lived into their 90s and held their positions on the bench for decades. An often-cited statistic in the debate is that the average tenure for a justice has nearly doubled in recent decades, going from an average of 14.9 years between 1789 to 1970, to 26.1 from 1970 to 2005.
“There’s no way the founders presumed that the average life tenure would be 26 years,” Roth said. “It’s not really the way the founders intended democracy to work.”
The Constitution says that justices ‘shall hold their offices during good behavior.’
Supporters point out that most Western nations have term or age limits for their high courts, as do 49 of the 50 states, with Rhode Island the only state where judges can serve for life. Term limits, advocates say, would ensure that the court does not become too entrenched in one set of views and that each president has an equal opportunity to contribute to the makeup of the court.
“Nomination and confirmation is a way that over time we ensure democratic accountability,” Siegel said, noting that he had warmed to the idea of term limits over time. “Regular changeover on the court, like an 18-year term, might be a very good idea and worth serious consideration.”
Opponents of term limits, however, question whether such a move is allowed by the Constitution and say it would do little to answer questions of partisan politics by the court.
“The problem is justices acting beyond the scope of their authority,” John Eastman, a former dean of the law school at Chapman University in California, said at this week’s hearing. “A series of judges who do that for 18 years and then leave and pass the baton to another judge who does the same thing doesn’t solve the problem.”
Term limits are a “constitutional fantasy,” Lyle Denniston, a constitutional literacy adviser for the National Constitution Center, wrote this spring .
Emma Baccellieri: @EmmaBaccellieri