Whoever came up with the axiom “It doesn’t matter whether you win or lose, but how you play the game” probably didn’t lose very often.
The Left today is losing at the Supreme Court, and they don’t like it one bit.
They respond by smearing the justices responsible for decisions they don’t like with fake complaints about “ethics” or want to literally manipulate how the court was designed to get their way more often, including a demand for judicial term limits.
A Change.org petition encouraging Americans to “urge Congress to take up the discussion [of] Supreme Court term limits” has garnered nearly 30,000 signatures since its creation just a few weeks ago.
That idea is no more legitimate today than when it has popped up in the past. It rests on false premises and is a “solution” in search of a problem.
An excellent way to evaluate the proposal is to ask why its proponents say it’s necessary: Is the claim valid? If so, is it really a problem? If so, would term limits solve it? Fix the Court is one of the loudest proponents of Supreme Court term limits, and its backers claim that the Supreme Court today is “highly political” and “polarized along partisan lines” with “the percentage of 5-4 rulings under Chief Justice [John] Roberts near an all-time high.”
Although that may have been true in 2015, when their article was published, the trend has not continued. Data from scotusblog.com shows that, over 15 terms, the Supreme Court has decided an average of 20% of its cases by a 5-4 vote. During the past three terms, that number has dropped to an average of 15%.
Therefore, Fix the Court’s claim does not represent the norm, as 5-4 rulings are no longer near an all-time high, since the share of 5-4 decisions was 26% or higher in only six of those 15 terms.
Even if the claim about 5-4 rulings persisted, why would it be a problem? Remember that the Supreme Court barely decides 1% of the thousands of cases it is asked to review yearly.
The most common reason for the court taking a case is that different lower courts have disagreed about the legal issue involved. In other words, they are complex cases involving thorny legal issues.
Thus, while it’s unsurprising that many cases have resulted in 5-4 decisions over the past 15 terms, it’s interesting to note that justices combined an average of six different ways on those close decisions.
Of the 10 cases decided by a 5-4 margin this past term, the majority was made up solely of appointees of Republican presidents in only three of them.
Finally, even if it were a problem, would term limits solve it?
Fix the Court proposes eventually shifting to 18-year terms for justices, with an appointment every two years. Since we tend to alternate between electing Republican and Democratic presidents, this might keep the composition of the court more politically balanced.
But the party of the appointing president doesn’t guarantee the same kind of justice. Who can explain the same president appointing Justices David Souter and Clarence Thomas? Or presidents of the same party appointing Justices John Paul Stevens and Samuel Alito?
Term limits, whether for politicians or judges, increase the frequency of new people being elected or appointed. But if, as the evidence shows, the cases the Supreme Court decides often produce many different combinations of justices, increasing the frequency of new justices joining the court could increase, rather than decrease, the number of 5-4 decisions.
Since the court currently consists of six Republican-appointed justices and three picked by Democratic presidents, perhaps looking at 6-3 decisions would align with the arguments Fix the Court attempted to make about 5-4 decisions in 2015.
However, during this past term, the percentage of cases decided by a 6-3 margin dropped to 19%, and the decisions in only five of those 11 cases fell along partisan lines.
Looking at unanimous decisions also contradicts Fix the Court’s narrative, as unanimity still exists on the court.
The percentage of decisions with no disagreement has risen recently, and the percentage that are fully unanimous and those that are at least partially unanimous are right at the average over the last dozen terms. Although the number of unanimous decisions drops in specific cycles, the current court still frequently rules unanimously.
Despite the rhetoric, the Left really doesn’t have a problem with any particular partisan ratio on the Supreme Court. After all, the court that invented a right to abortion in Roe v. Wade had the same 6-3 ratio it has today. In addition, the court had an even larger 7-2 Republican majority when it affirmed the right to abortion in Planned Parenthood v. Casey and delivered victories for the gay rights movement in Romer v. Evans and Lawrence v. Texas.
What really matters to the Left, you see, is not how long judges serve, but the kind of judge they are during that service.
America’s Founders did not limit the terms of federal judges because, as mentioned in the Declaration of Independence, protecting judges from political interference is critical.
Changing that by imposing term limits—which would require a constitutional amendment in any case—would not solve the problems supporters cite, but would only undermine the judiciary’s independence.
Thomas Jipping is a senior legal fellow with the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Pierce Sandlin is a member of the Young Leaders Program at The Heritage Foundation. This first appeared in the Daily Signal.