The world has changed by leaps and bounds since the Supreme Court began meeting in 1790, but some things have not changed, including the country’s loyalty to the U.S. Constitution. However, there is a movement in Congress to rework a major piece of the Constitution – how the highest court in the land operates.
On July 26, Rep. Hank Johnson, D-Ga, introduced the Supreme Court Tenure Establishment and Retirement Modernization (TERM) Act to the House of Representatives. The proposed legislation would do away with the Supreme Court justice’s lifelong term and instead require an 18-year term limit.
The TERM Act would also have the president nominate a new justice every two years, in the first and third years after the presidential election. When the new individual takes their seat, the longest serving justice moves to senior status.
With the senior status, justices would still hold office on the Supreme Court, which includes official duties and pay. If the number of active justices falls below nine, whether because of a vacancy, disability or disqualification, the justice who most recently attained senior status would serve as the ninth associate justice.
Why Change the Supreme Court Process?
Whether or not the intent of the original nomination process is still viable has been a concern for many legislatures, particularly Democrats, for several years.
In 2016, the concern intensified when Republicans blocked President Barack Obama’s nominee to the Supreme Court, and even further when President Trump succeeded in placing three justices on the court (within his one term), entrenching a six-to-three conservative majority.
When touting the new bill, Johnson did not mince words concerning the imbalance. “Five of the six conservative justices on the bench were appointed by presidents who lost the popular vote, and they are now racing to impose their out-of-touch agenda on the American people, who do not want it,” he said.
Another strong point in changing the system is the ever-increasing life expectancy of Americans.
Article III, Section 1 of the Constitution sets in place the rule that ensures federal judges hold their seats “during good behavior,’’ meaning a Supreme Court justice serves a lifetime term in office unless they resign, retire, or are removed. The reasoning behind this was to give the justices the ability to steer clear of partisan pressures. In other words, as the executive and legislative branches rotate their leaders through each political cycle, the high court justices serve continuously, independent of the two branches.
However, when the Supreme Court heard its first case 232 years ago, the life expectancy of the average American white man (the only type of American allowed to hold a Supreme Court seat at the time) hovered well below 50 years. In current times, the life expectancy of the average American is well into their 70s.
This means open seats may become even more of a rarity as time goes on. A justice appointed today could be serving four decades from now. The oldest serving judge in 2022 is Clarence Thomas, born in 1948. He has been on the bench since 1991. The youngest judge, Amy Coney Barret, was born in 1972. She has been serving since 2020.
This is not the first bill concerning the nomination process of the Supreme Court pushed by Rep. Johnson. Earlier in July, while describing the Supreme Court as being “…at crisis with itself and with our democracy,’’ he urged Congress to consider another bill called the 2021 Judiciary Act. That proposed law would increase the Supreme Court from 9 justices to 13.
On Aug. 2, U.S. Senator Sheldon Whitehouse (D-RI) introduced the TERM Act to the U.S. Senate.
“I look forward to working with my colleagues to fine-tune this and other proposals as we begin a national conversation about how best to fix a captive institution and make it more accountable to the people it is supposed to serve,” Whitehouse said.