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There’s a Supreme Court reform idea people like, if they know about it

Public confidence in the high court suffered a major blow in the last few months, polling shows, and proposals to change the court are gaining traction. 

WASHINGTON (CN) — Two in three Americans support limiting the tenure of Supreme Court justices, but the reform proposal still faces an uphill battle even as a bill sits ready for congressional action. 

The new polling from the Associated Press-NORC Center for Public Affairs Research shows that 67% of Americans support term limits for justices on the high court. This includes 57% of Republicans and 51% of registered Independents. Democrats, unsurprisingly, had the highest support (82%) for term limits.  

Life tenure on the Supreme Court was originally thought to protect justices' independence and neutrality. For the justices in 2022, however, life tenure is not what it was for justices in the 18th century or even a few decades ago.

Justices typically served on the court for about 15 years until the late 1960s. Now the justices serve about 26 years, and this could be a low estimate considering the justices are being nominated younger and younger. 

“There is a real focused effort to appoint younger justices,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone interview. “Rather than men and women in their say late 50s or early 60s, they appoint men and women in their late 40s or early 50s. So you appoint younger ones that are likely to be on longer, and lifespan is longer, and you get people serving on the court for 20 to 30 years on a routine basis. One president could have extensive dead-end control over the court.” 

Most proposals for term limits would cap the justices’ tenure at around 18 years and provide each president the opportunity to nominate two justices. Supporters of these reforms say this would take away the pressure or assumption that justices resign so certain presidents can replace them and even out the playing field so every president gets appointments. 

The kink in this plan is that the Constitution gives federal judges life tenure. So the workaround is that the justices would maintain that life tenure as a judge, not a justice. 

“What people mean by term limits is that the president would appoint a justice to the Supreme Court; that justice would have life tenure as a federal judge but would have a limited term as a Supreme Court justice,” Lawrence said. 

Out of all the court reform proposals, adding term limits has been deemed a more moderate approach and has earned bipartisan support. Steven G. Calabresi, a professor of law at Northwestern Pritzker School of Law and co-chairman of the Federalist Society, called term limits a conservative reform proposal in a 2006 paper

“Our proposal is ultimately a Burkean reform intended to move the Justices back toward an average tenure that is similar to what the average tenure of Justices has been over the totality of American history,” Calabresi wrote. 

Democratic Representative Ro Khanna sponsored a bill that would make these proposals a reality. The bill has just over a dozen cosponsors but doesn’t appear to have much movement beyond that. 

Court watchers say the lack of movement on what appears to be a popular reform option could be because efforts have so far been focused elsewhere. The majority of court reform efforts have been focused on expanding the court — an effort experts say is a much more radical proposal. 

“A reason the term limits bill hasn't caught widely within the Democratic caucus, beyond the dozen or so cosponsors on H.R. 5140, is that there is a ton of money behind the court expansion effort,” Gabe Roth, executive director of Fix the Court, said in an email. “Some liberal donors in some back room decided for reasons I fully don't understand that expansion was the proposal to support.” 

A crowd of people gather outside the Supreme Court in Washington on May 2, 2022, after the leak of a draft opinion suggesting that a majority of the justices planned to overturn the 1973 case Roe v. Wade that legalized abortion nationwide. (AP Photo/Alex Brandon)

But while expanding the court has drawn more attention from some political groups, it doesn’t have that same support from the public. Only 34% of Americans favor adding justices, according to the new AP-NORC poll. This support is highest among Democrats, with 52% support, but very low with Republicans, of which only 14% support the idea. 

Roth hypothesizes that adding justices has gotten more attention because the concept is easier to understand. There are a lot of follow-up questions on how term limits would be applied, making it a harder sell when messaging. The House bill answers all of these questions, it’s just not easily summed up. 

The bill would limit justices' terms to 18 years and apply only to justices who are appointed after the bill is enacted. This means all the current justices on the court would not be affected should it pass. If a justice leaves the court because of illness, death or any other reason not related to their term ending, a “senior justice” — what the justices will be known as when they leave the court after 18 years — will take their place until a new appointment can be made. 

In an apparent response to Senate Minority Leader Mitch McConnell blocking former President Barack Obama’s last nomination, the bill has a stipulation that the Senate must act on nominees within 120 days of their nomination. 

Term limits for the justices has achieved bipartisan support outside of Congress, though Republicans within the legislative branch have yet to embrace the idea. 

“When you're winning at SCOTUS as the right [wing] clearly is today, any reform, no matter how rational, is then viewed as a threat to power,” Roth said. 

Another reason that these seemingly popular reforms might be stalled is because much of the current congressional leadership has good reason to be opposed to talk concerning age or term limits. 

“The Democratic leadership in the House and Senate is nearly all 70-plus, and in general, septuagenarians and octogenarians, no matter which branch of government, get nervous when you start talking about term limits, so they're reluctant to lend their support to H.R. 5140 or call for a vote on it,” Roth said. 

Calls for court reform have increased in response to recent rulings from the court. The majority of Americans — 53% — disapprove of the court’s decision last month to overturn Roe v. Wade

“I think right now we are close to the crisis point where you have a lot of people in the country who feel this is not a legitimate court, that is an extremely dangerous thing for the institution of the court,” Lawrence said. “I think this kind of reform could go a long way toward reestablishing some sense of the court can't get too far out of step with the public.” 

Court watchers say limiting the justices’ tenure would also limit the power of the court which could be a response to what some have called overreach in their recent decisions. 

“What makes this situation even more frustrating is that in the end, expansion by definition makes the Supreme Court more powerful by saying, ‘we want all these future decisions made by a 13-justice court,’” Roth said. “Term limits, on the other hand, is about right-sizing the power of the court by saying no one justice individually, and no unelected institution as a whole, should have outsized, unchecked, decadeslong power in a modern democracy.” 

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