The Supreme Court Needs Term Limits
PLUS: A review of "Summer of Soul (...Or, When the Revolution Could Not Be Televised)"
Supreme Court Justice Stephen Breyer (pictured above) made some news last week, but it wasn’t the news liberals were waiting to hear. With the Court’s most recent term coming to an end, Breyer, rather than announcing his retirement, instead hired four new law clerks for the new term beginning this October. That’s a strong sign Breyer plans on sticking around for another year.
Breyer has a lifetime appointment to the Court so it’s his prerogative to stay on the bench for as long as he wants. No one is saying the almost 83-year-old isn’t fit mentally or physically to serve anymore either. It’s just that I remember saying back in 2014 that the boldest political move of the year was Supreme Court Justice Ruth Bader Ginsburg not retiring. Ginsburg turned 81-years-old that year and had already survived two bouts with cancer. As part of what was regarded as the Court’s 5-4 liberal minority, Ginsburg could have retired and allowed Democratic President Barack Obama to name a replacement who probably would have been confirmed by a Democratic Senate. Ginsburg’s retirement wouldn’t have flipped the political lean of the Court, but it would have preserved the close margin.
Instead, Ginsburg stayed on. Democrats lost control of the Senate that November (depriving them of control over the confirmation process) and then lost the White House two years later (depriving them of the ability to nominate judges). Ginsburg almost made it to another Democratic presidential/Senate combo but passed away mere weeks before the 2020 election. Republican Senate Majority Leader Mitch McConnell—who refused to consider a nomination to the Court in early 2016 because the opening caused by Justice Antonin Scalia’s death came in a presidential election year—rushed to replace Ginsburg with Trump nominee Amy Coney Barrett. Not only did that entire episode land Trump in the hospital with COVID-19, but it also cemented a conservative 6-3 majority on the Court. And that’s not just some regular old conservative majority, either: Trump had also named the replacement for Justice Anthony Kennedy, the most moderate member of the old conservative bloc and one who would occasionally side with the Court’s liberal bloc (as he did on the case finding prohibitions against same-sex marriage unconstitutional.) In its current iteration, the Court has basically become a debating parlor for the Federalist Society, so yeah, looking back, it really was pretty bold for a liberal 81-year-old cancer survivor in a nation with a life expectancy of about 79-years to figure she could hang on for another 2 to 4 to 8 to who-knows-how-many years when there was an opportunity in the moment to step aside in favor of someone thirty years younger along the lines of Sonia Sotomayor or Elena Kagan.
There has been some talk that liberal panic over the Court is overblown given the results of last term, but I find it hard to believe in the long term that the Court’s current conservative coalition will somehow land to the left of former Justice Kennedy on many issues. Today, it’s Chief Justice John Roberts who is regarded as the Court’s swing vote, which, sure, he saved Obamacare, but his swing is still built on the rightward slope of the judicial hill. That matters on issues like campaign finance, voting rights, organized labor, abortion, affirmative action, gun control, and religious freedom. Additionally, if Roberts were to defect, he still needs to bring at least another conservative with him. Maybe Barrett and Brett Kavanaugh or even Neil Gorsuch will side with him every now and then, but I’m guessing once the Court settles into a term mostly free of the political tumult of the past four years with an established nine members that it will begin tilting pretty noticeably to the right.
For his part, Breyer—by choosing not to retire as soon as a Democratic president can nominate a judge for a Democratic Senate to confirm—may just be trying to protect (or even salvage) the reputation of the Court as an institution above politics. After all, the past three Court openings (Scalia —> Garland/Gorsuch, Kennedy —> Kavanaugh, Ginsburg —> Barrett) have been highly politicized. (This doesn’t even get into the drama over Democrats nuking the filibuster for federal judicial appointments and McConnell’s relentless confirmation of Trump-nominated judges.) In fact, the political calls for Breyer to retire may only reinforce his inclination to stay on the Court in order to prove his political independence. One has to wonder, though, if a fairly routine nomination that wouldn’t shift the balance of power on the Court could temper the perceived politicization of the judicial branch.
In a recent speech at Harvard, Breyer said the Court is not nearly as political as many assume, stating that justices are not “junior level politicians” and that “jurisprudential differences…account for most, perhaps almost all, judicial disagreements.” Breyer is distinguishing here between judicial philosophy (which judges use to interpret the law and decide cases) and political philosophy (which people use to form and guide their political opinions.) These two philosophical approaches do not walk hand-in-hand with one another even though certain judicial philosophies tend to generate outcomes aligned with certain political philosophies. In other words, Breyer may often generate opinions that are well-received by political liberals but he did not settle on an opinion because it would be well-received by political liberals or because it would promote a liberal political agenda. Instead, he followed his own ideas about the law, which happen to frequently (but not automatically) align him with outcomes preferred by political liberals.
Breyer is probably right that Court watchers excessively politicize the Court by portraying justices as “politicians in robes” and that judges try to put politics and personal preferences aside when making decisions. And it’s also worth noting that while partisans get worked up over which side won a case at the Court, many decisions in high-profile cases revolve around legal details that often limit the reach of that decision to other cases. But Mitch McConnell isn’t nearly as high-minded as Breyer, and McConnell knows how to count to five (and loves counting to six when he can.) McConnell grasps that because different judicial philosophies tend to generate outcomes more or less preferred by one political party or the other, partisans are inclined to prefer judges with certain judicial philosophies over others. That’s why he stonewalled Merrick Garland for months and then rushed through Barrett’s confirmation in about six weeks. Politicians gonna politick, and Breyer just can’t recuse himself from that reality. If Breyer is invested in his judicial philosophy—which, as something more than an abstract mind game, has an actual effect on real people in the real world—I would think he would prefer to be replaced by someone whose rulings are more likely to reflect his jurisprudence than, say, the jurisprudence of Clarence Thomas. Consequently, Breyer should want to be replaced by a Democratic president.
Or maybe Breyer figures he’ll stick around for one more term and retire next summer before the midterms; after all, he’ll finally get to sit next to the Chief on the bench this year! Or maybe he thinks he could boost Democrats’ electoral prospects by retiring the summer before a midterm election…? But Breyer would be wise to do some quick senatorial math, which would remind him that any Biden nominee to the Court confirmed along party lines would only get there by the grace of Kamala Harris’ tie-breaking vote. It would only take an untimely death or long-term convalescence to imperil Democrats’ ambitions in the chamber. And don’t think for a second Mitch McConnell wouldn’t invoke some cockamamie principle to prevent a Republican-controlled Senate from even holding hearings on a nominee until after the Ron DeSantis/Ivanka Trump inauguration. (“Any odd-numbered year in which the president and Senate majority are of different parties and the winning horse gets disqualified from the Kentucky Derby and the stock price of GameStop rises above $200 per share…”) I’m sure that guy would to love to count to seven.
These past four years have demonstrated there’s too much drama surrounding Supreme Court appointments. It’s not unusual for justices to time their retirements to coincide with presidential administrations that would likely appoint jurisprudentially-similar successors. But when those vacancies suddenly appear because of bad health or death, the politics behind the confirmation process can take a nasty turn, particularly if they occur during fraught political times (as we learned following the deaths of Scalia and Ginsburg.) That’s not good, as it has the potential to undermine the Court’s credibility as a political arbitrator and places too great of political stakes on the health and well-being of a few political actors. (It’s also frankly gross, since people like me end up writing articles urging octogenarian judges to retire because I’m worried about the political repercussions of their death.)
The way to solve this is with term limits. My plan is simple: Eighteen-year terms, with one justice’s term ending every odd-numbered year. If we implemented the plan in 2023, we would follow the order of seniority on the Court, with Thomas’ term ending that year followed by Breyer in 2025, Roberts in 2027, and so on. This would mean two justices would be appointed during every four-year presidential term. And just to make sure a justice’s early departure didn’t suddenly upset the Court’s prevailing ideological balance, each president would be required to compile a list of “vice justices” who would be elevated to the Court if their nominee could no longer serve.
To imagine how this plan would have played out over much of the past century, just go back to FDR’s time in office, when he won an unprecedented four presidential elections. Democratic-appointed judges would have acquired a majority on the Court in 1941 (FDR would have been chomping at the bit to pack that Court) and Democratic presidents would have appointed all justices by 1949. Republicans would have appointed a majority in 1969 before Democrats retook it in 1977. That majority would be short-lived, however, with Republicans winning a majority in 1981 and holding on to that until 2009. Trump’s victory in 2017 would have given Republicans a majority that year, but Biden would shift the Court back to Democrats in 2021.
Under my plan, the Senate would still have to confirm justices, so there’s still room for some McConnell-esque chicanery here if the Senate chose not to confirm a presidential nominee. It’s likely, however, that the assumption going forward would be that presidents, by virtue of winning a nationwide election, would have the prerogative to fill two regularly scheduled vacancies on the Court per term. It’s possible my proposal could further politicize the Court if the public began associating presidential victories with judicial power. This might be a particularly acute problem if a president got the opportunity to replace a term-limited judge appointed by a president of the opposite party and tip the Court’s balance of power. But Supreme Court nominations have always loomed in the background of every recent presidential election, and partisans are already attuned to the presidential politics of Supreme Court vacancies. By making those appointments regular and a guaranteed spoil of electoral victory similar to other benefits that come with winning, hopefully partisans’ burnt-earth approach to the nomination process would subside while their partisan passions would be channeled into elections where they belong.
There is a risk this plan would defer too much to the president’s role in the selection process and largely marginalize the Senate, which might be expected to simply confirm the president’s nominee. This latitude might incline presidents to nominate judicial extremists or unqualified hacks to either satisfy their partisan bases or pack the Court with political hatchet men. Perhaps then there would need to be some qualifications placed on who could serve as a justice, such as prior experience as a federal judge (sorry, Earl Warren.)
The biggest obstacle to my plan would be the Constitution, which states “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” It is widely accepted that means Supreme Court justices have lifetime tenures. Consequently, it may take a constitutional amendment to place term limits on federal judges. I wonder, however, if there might be ways around that limitation. For instance, the Constitution does not specify how many members of the Court must be voting members. Maybe a law could designate the nine least-senior justices as voting members of the Court, with term-limited justices remaining on the Court in an advisory capacity where they would be allowed to participate in oral arguments or issue official amicus curiae briefs.
After nearly 250 years of Supreme Court jurisprudence, it may seem like a radical idea to term-limit Supreme Court justices, yet only three states (Massachusetts, New Hampshire, and Rhode Island) grant lifetime tenure to their state supreme court judges, and of those three, only Rhode Island does not require judges to retire at the age of seventy. Granted, an idea isn’t a good idea just because a bunch of states do it, but it does help dispel the notion that term-limiting justices is a nutty idea.
Stephen Breyer (age 82) will have been a Supreme Court justice for 27 years by the end of July. Clarence Thomas (age 73) has been on the job for over 29 years. The three most recent justices to leave the Court had been there for 27 years (Ginsburg), 29 years (Scalia), and 30 years (Kennedy). If Amy Coney Barrett were to break Justice William O. Douglas’ record of 36 years, 211 days on the Court, she’d still be two years shy (85) of how old Ruth Bader Ginsburg was when RBG passed away (87). Clarence Thomas (73) is on track to pass Douglas’ mark in his early 80s. By that time, he would have served two 18-year terms. That many years on the bench seems like more than plenty.
Maybe justices hang around longer on the bench today because they have great health care and feel they have unfinished business on the Court. Their marathon tenures, however, threaten to turn the nation’s highest court into a dead pool, which fosters some pretty toxic politics. We could address at least part of that problem by limiting Supreme Court justices to one 18-year term.
Photo credit: BrookingsInst/Creative Commons
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Revisiting My “Dumb” Comments About “Defund the Police”
On June 29, I wrote this in an article about New York City Democratic mayoral candidate Eric Adams and the American public’s growing concern with violent crime:
Democrats, meanwhile, still endorse police reform but have distanced themselves from calls to “defund the police” (a dumb slogan Republicans easily exploited for political gain despite Biden’s repudiation of it) by allocating more money to departments.
A reader challenged me on my use of the word “dumb” to describe the Defund the Police slogan. That’s fair; my word choice was far too blithe and ended up dismissing the genuine and often personally-felt concerns of those who support the Defund the Police movement. It is only made worse by the fact that I am a white person appearing to reject out of hand a movement rooted in the lived experience of many people of color. In my article, I wrote that I could understand why people who live in high-crime neighborhoods would support a politician who promised to reduce crime in their communities; similarly, I should also be able to understand why those who have been traumatized by police violence would feel safer if there weren’t any cops around. If I am going to be critical of Defund the Police, I should do so respectfully without diminishing those who support it for deeply personal reasons.
Here is the more nuanced point I failed to make. My main concern with “Defund the Police” is that, as a slogan, it is confusing and politically counter-productive. Consider this USA Today/Ipsos poll from March of this year: When asked if they supported the movement known as “Defund the Police,” only 18% of respondents said they did. Fifty-eight percent said they opposed it. Support among Black Americans was only 28%, and only 34% among Democrats. Yet the same survey found that 43% of Americans supported redirecting police funds to social services, which is the idea at the heart of Defund the Police. A 57% majority still opposed the idea, but I’d much rather be working from a base of 43% than 18%.
What accounts for the disparity? I suspect when most people hear the phrase “defund the police” they think the phrase means “eliminate the police.” That’s a very unpopular idea, with 67% of respondents in the survey opposed to it, including a majority of Black Americans. I would guess most Defund the Police supporters don’t actually support “eliminating” the police, but the slogan makes it sound to most Americans like they do. Again, that’s unfortunate, because they’re close to winning over a majority of Americans on the substance of their argument. If a slogan used to promote a political agenda is more unpopular than the political agenda itself, it is probably prudent to modify the slogan.
There are probably some supporters of Defund the Police who prefer that slogan to less provocative ones like “Reform the Police” or “Fix the Police,” which are perhaps too vague and easy to water down with milquetoast policies. Provocation has its uses, particularly if one feels the best way forward is to shock people into recognizing and responding to a problem. But not only does “Defund the Police” confuse most Americans and require its defenders to spend precious time and resources explaining and clarifying the meaning of their position when they could be making their case assertively for it, the slogan also moves the field of political play to their opponent’s home turf. Someone like Donald Trump wants to bellow on about “defunding the police” because he knows he has the upper hand in that argument. He doesn’t want to talk about “reforming the police” because if he went along with that idea, it would appear he was caving to the left and would have to reckon with their ideas.
And the left has an opportunity right now. According to a new USA Today poll released just yesterday, while Americans trust Republicans more on the issue of crime than Democrats by a 32% to 24% margin, Americans trust Biden more than Trump 42% to 37% when it comes to handling crime. The Defund the Police movement remains unpopular (22%) while 70% of Americans support increasing police department budgets, but 62% of Americans now want to divert money from police departments to fund community policing and social service initiatives. Only 22% of respondents believe police treat all Americans equally; that includes a majority of Whites and a plurality of Republicans. Asked to choose between a plan that shifted funding to social services, got guns off the street, and demilitarized the police vs. a plan that increased spending on police and let police do their job as they saw fit, more Americans supported the former over the latter. Add planks to overhaul police interventions, address racial bias in policing, and improve relations between police and community members, and we would end up with a strong police reform bill. The momentum is with those who want to reform the police rather than “defund” the police or preserve the status quo.
There are probably some who are thinking this is all really just an argument about marketing. I wouldn’t go quite that far; there are still genuine disagreements about how much money ought to be reallocated away from police departments and if neighborhood policing should be scaled back or retooled. Beyond that, though, both sides share a lot in common when it comes to the actual substance of the matter. It would certainly help if the broader American public would take the time to educate themselves more thoroughly on issues like this, though, so that we could have more informed policy debates rather than skirmishes based on opinions drawn from the fleeting impressions of political shorthand. Unfortunately, I fed that beast when I blithely dismissed the Defund the Police slogan as “dumb.” I no doubt discouraged people from thinking more seriously about that idea and empathizing with those who promote it when I typed that word into my keyboard. It turns out if you actually take the time to learn about it, there’s a good idea behind that slogan most Americans would rally around.
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Vincent’s Picks
(Vincent’s Picks theme song here.)
During the summer of 1969, New York City nightclub singer Tony Lawrence hosted a series of Sunday afternoon concerts in Mount Morris Park in Harlem sponsored by NYC’s Parks, Recreation, and Cultural Affairs Division and Maxwell House Coffee known as the Harlem Cultural Festival. The performances were filmed, but for decades footage from the concerts went unseen. Thanks to Ahmir “Questlove” Thompson—the drummer for the Roots, whom most Americans probably know as Jimmy Fallon’s house band on The Tonight Show but who deserve recognition in their own right for such classic rap albums as Things Fall Apart (1999), Phrenology (2002), and How I Got Over (2010)—those performances can now be appreciated by more than the 300,0000 who turned out to witness them over fifty years ago.
Directed by Questlove and streaming now on Hulu, Summer of Soul (…Or, When the Revolution Could Not Be Televised) combines footage from the concert with other clips from the era and modern-day interviews to immerse the viewer in the musical, political, and cultural stew of Black America in 1969. The performances offer not only a tour of the African American musical tradition—blues, gospel, jazz, soul, pop, funk—but the broader African diaspora as well. The music speaks to anguish and anger over war, assassination, poverty, and injustice, but the concert is also a massive celebration of Black pride, beauty, resilience, fellowship, and creativity.
Each viewer will take away their favorite moments. I was mesmerized by the performance of Ray Barretto, who was part of a larger segment focused on the contributions of Afro-Caribbean musicians. Many will never forget Mahalia Jackson and Mavis Staples singing Martin Luther King Jr.’s favorite hymn “Take My Hand, Precious Lord”; Jesse Jackson’s story about that song is absolutely crushing. Early in the film, Questlove succeeds in redeeming the reputation of oft-mocked champagne soul band the Fifth Dimension. I hope audiences will cherish footage of a full-on and commanding rock performance by the multi-racial, multi-gender pop-funk band Sly and the Family Stone, who seems determined to alter the nation’s consciousness by administering an electrical charge directly to its limbic system. Hopefully it leads people to rediscover their music and elevate them in the debate over America’s greatest rock band.
The year 1969 was the year Apollo 11 landed on the moon (concert-goers have opinions about that) and Woodstock. While the Harlem Cultural Festival fell into obscurity, Woodstock became mythologized as the greatest rock festival of all time and the ultimate expression of the 60s countercultural movement. Yet Woodstock is best understood as the end of something; in the 1970s, the rock and roll universe that had coalesced around the Beatles and the Stones and Bob Dylan and LSD seemed to shatter into dozens of different genres (i.e., country rock, singer-songwriters, progressive rock, heavy metal, power pop, glam rock, etc.) On the other hand, the Harlem Cultural Festival seems like the start or maturation of something, like so many threads ready to be woven into so many different tapestries. The Chambers Brothers, Jimi Hendrix, and the Temptations had already experimented with psychedelia. James Brown and Sly and the Family Stone had revolutionized rhythm with funk. Isaac Hayes would release Hot Buttered Soul while these concerts were underway. Within a few short years, we’d have classic rock albums by Miles Davis, Marvin Gaye, Curtis Mayfield, Funkadelic, War, the Isley Brothers, Herbie Hancock, and Earth, Wind and Fire. Rather than fragmenting, all those artists would be pulling from and experimenting with a diverse range of sounds and rhythms drawn from Black American traditions and create some of the rock and roll era’s most exciting music.
I would be remiss to leave out Stevie Wonder, also featured in this film, whose 70s albums are rivaled only by Prince and the Beatles in their inventiveness. In many ways, Wonder is this film’s quintessential performer. He appears here singing “Shoo-Be-Doo-Be-Doo-Da-Day”, a fairly standard pop Motown song from his 1968 album For Once in My Life. But man, check out that keyboard solo he delivers; after you see it, you’ll never forget the piano is technically a percussion instrument. You get a sense here Wonder is still part of the Motown system but ready to bust loose, that he needs to take everything he’s learned and heard and make a future out of it. A new world is waiting. This film is like witnessing its birth.
Thanks for reading.
Exit Music: “I Want to Take You Higher” by Sly and the Family Stone (1969, Stand!)