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Why There Should Not Be Supreme Court Term Limits

Mark Levin argues in his bestseller The Liberty Amendments: Restoring the American Republic that the U.S. should propose a constitutional amendment to set term limits for Supreme Court justices at 12 years, and that both Congress and the state legislatures should have the power of legislative override of Supreme Court decisions with a 3 to 5 vote.

In my opinion, despite its many flaws, the Supreme Court should not be subject to term limits and further political meddling by other branches of the federal government.  

Levin proposes a 12-year term limit for Supreme Court justices and proposes breaking these justices up into three classes that are replaced every four years if a vacancy does not open up before that time. Under this system, Congress would organize the Justices into three classes in reverse seniority order. The three Justices in the first class terms would expire after the fourth year of ratification, the justices in the second class at the end of eight years, and the justices of the third class after 12 years. If a vacancy on the Court opens up before the expiration of a justice’s term, the president would appoint a new Justice and the Senate would confirm said Justice exactly like the current system. 

The second half of the amendment proposes that either Congress or the state legislatures may repeal any Supreme Court decision without the threat of presidential veto, as long as this maneuver takes place within 24 months after the Court hands down its decision. 

There is one word to describe the Supreme Court of the United States: activist — both conservative and liberal courts. 

The Framers, fearing an autonomous judiciary that could eclipse the other three branches of government, gave Congress the power under Article III to define the size of the Court, and also the makeup of the federal courts. The Framers expected, as Alexander Hamilton so famously stated, for the courts to be the “least dangerous branch” of government. All of this changed with the most famous Supreme Court decision in the history of American jurisprudence: Marbury v. Madison (1803). Under this decision, the Marshall Court, citing the Supremacy Clause of Article VI, decided:

“The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?” 

This decision meant that although the principle of judicial review is expressly stated nowhere in the Constitution, the nation’s highest court now had the power to review the constitutionality of its laws. 

I am certainly not a fan of a court system that has significantly broadened the powers of the federal government at the expense of the state, local government, and the individual.  Throughout the history of the U.S., the Court gave us the famous decisions of Scott v. Sandford (1857), which famously stated that slaves were property; Korematsu v. United States (1944), which states that the U.S. government can intern you indefinitely despite citizenship (still case law); and Plessy v. Ferguson (1896), which institutionalized segregation, just to name a few. 

While the Court has certainly much to be ashamed of, do we as a people want to turn the Court into just another institution that turns into a partisan war zone on a more regular basis? As the system stands now, I believe many Supreme Court justices really aren’t concerned with political popularity. They make hard decision day in and day out knowing that they are going to be making hoards of people mad. If we are going to live in a society where the courts have free reign to declare a law unconstitutional, I would rather that the Court stay out of the regularly scheduled political mudslinging and stay concerned with trying to make hard decisions. 

Finally, the second part of Mr. Levin’s proposed amendment is a redundancy, as the Court is not a self-executing institution. While Congress cannot nullify a Supreme Court decision, there are plenty of historical examples in which Congress simply ignored the Court’s ruling.

Furthermore, Congress possesses the power to amend the Court to whatever structure it sees fit. If Congress feels as if the Court is exceeding its powers, under Article III, Congress could change the structure of the Court into whatever it wanted it be. Likewise, the president is the ultimate authority in carrying out Supreme Court decisions. Does the president always obey what the highest Court says it has to do?

Why not ask the Cherokee Indians (Worcester v. Georgia 1832)? 

Way to go, Andrew Jackson…          

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