Out of step with American public sentiment and unwilling to hold themselves to the same ethical standards and accountability as the rest of the federal judiciary, Congress and the president, the Supreme Court is making its own case for the best possible solution to its self-made crisis in confidence: term limits.
Earlier this year, Chief Justice John Roberts rejected a request from Senate Judiciary Chairman Dick Durbin (D-Ill.) to testify about what he’s doing to hold Supreme Court justices accountable after the recent explosive stories about the ethical lapses of Justices Clarence Thomas, Samuel Alito and Neil Gorsuch.
Robert’s response was short and clear: “I must respectfully decline your invitation.” He went on to cite “separation of powers,” a bedrock principle of our form of government, to rebuff Congress inquiring about regulating the court. Unfortunately, the chief justice’s response failed to recognize another bedrock: checks and balances.
There are countless examples of checks and balances between the distinct branches of government that don’t disrupt the separation of powers. A president can veto legislation passed by Congress. Congress can choose to override that veto. Congress can investigate and conduct hearings to hold a president and their administration accountable. A president can appoint his cabinet, ambassadors and federal judges. Congress has the right to advise and consent.
But once a justice is confirmed, there is no meaningful check on the Supreme Court despite its immense power and profound impact on the lives of Americans.
There is no mechanism to hold justices accountable for misconduct other than impeachment, and impeachment has happened only once, in 1803. The Supreme Court derives its legitimacy from our shared acceptance of the rule of law and faith that members of the court reach their decisions honestly and ethically.
Those two pillars are cracked, and faith in the court is in danger of collapse.
For someone who said last fall he was concerned critics of the Supreme Court were questioning the court’s legitimacy, Chief Justice Roberts has now made the case that the criticism is well-earned.
Public approval of the Supreme Court recently dropped to an all-time low. Just 30 percent of Americans have confidence in the court, while nearly twice as many people — 59 percent — disapprove. Even worse, nearly 70 percent of Americans believe the court is primarily motivated by politics as opposed to following the law.
The public’s lack of faith in the highest court of the land should come as no surprise, given the events of the last year.
Last June, the court overturned Roe v. Wade, reversing a half-century of law protecting a woman’s right to abortion. Whether one agrees or disagrees with the decision (far more Americans disagree), the feeling that several of the justices had paid lip service to the importance of settled precedent during their confirmations increased the public’s frustration with the decision.
Then came explosive stories about unethical conduct by Thomas, Alito and Gorsuch failing to disclose (as federal law requires) expensive gifts, including luxury vacations, private flights, tuition school payments and real estate transactions involving GOP donors and a Wall Street billionaire with ties to cases coming before the Supreme Court. Thomas’s wife’s involvement in far-right causes has only made things worse.
Supreme Court justices ascribe to a vague and watered-down version of the ethics rules governing the rest of the federal judiciary. It is nowhere near what the president and members of Congress are required to disclose regarding gifts, investments, income and possible conflicts of interest.
A bill has recently been filed in the Senate that will toughen ethics standards and rules for the Supreme Court. Good. But that’s not enough to reverse the growing doubt and concern about the court’s fidelity to fairness and impartiality.
A guarantee is needed that appointment to the high court isn’t a lifetime of unaccountability and disinterest. Our laws must reflect Americans today.
There is strong, bipartisan support for Supreme Court term limits. A recent Associated Press poll showed 67 percent approval, including 82 percent of Democrats and 57 percent of Republicans.
Chief Justice Roberts, a conservative appointed by President George W. Bush, and retired Justice Stephen Breyer, a liberal appointed by President Clinton, have supported the idea in the past. Senators from both sides of the aisle, including polar opposites Ted Cruz (R-Texas) and Corey Booker (D-N.J.), have shown support.
In 2021, a presidential commission favorably evaluated term limits as part of a broader look at possible Supreme Court reforms.
There are different options for term limits. A constitutional amendment is one possibility, but it would be onerous. The more practical option is to have Congress pass a term limits law, although there is not a consensus over the constitutionality of such a law.
One legislative idea is to create 18-year terms, after which justices would acquire “senior status,” where they retain title and are available to fill in on appellate matters, and grandfathering current members of the court. This is similar to what happens with federal judges in lower courts. The fact that federal law created the current system of senior status for lower court judges suggests that a similar arrangement for Supreme Court justices would be constitutional.
We are at a tipping point, and the one thing that Americans on both sides of the political aisle agree on is growing distrust of our institutions. The Supreme Court is supposed to be the institution that binds us together in a shared faith in our systems of laws. But faith in the fairness of the court has frayed, and the recent revelations of ethical lapses by justices, some of whom have served for over 40 years, raise fundamental questions about whether lifetime terms with little to no oversight are a prescription for corruption. They are certainly a cause for concern.
There are term limits for the president, as well as for many governors and state legislators. The time has come for term limits for Supreme Court Justices. The public’s faith in the integrity of our court — and our government as a whole — may depend on it.
Alan M. Cohn is CEO of Term Limit the Court and a Peabody Award-winning journalist. Andrew Warren is the duly elected state attorney in Hillsborough County, FL.