While sifting through the remains of Rick Perry’s presidential campaign, the New Yorker‘s Hendrik Hertzberg found one idea to admire: giving Supreme Court justices term limits. “The Governor may be a little shaky about the Court’s names and numbers, but he knows what to do about it,” Hertzberg wrote, before excerpting Perry’s idea in full from his campaign website:
A Constitutional Amendment creating 18-year terms staggered every 2 years, so that each of the nine Justices would be replaced in order of seniority every other year. This would be a prospective proposal, and would be applied to future judges only. Doing this would move the court closer to the people by ensuring that every President would have the opportunity to replace two Justices per term, and that no court could stretch its ideology over multiple generations. Further, this reform would maintain judicial independence, but instill regularity to the nominations process, discourage Justices from choosing a retirement date based on politics, and will stop the ever-increasing tenure of Justices.
Perry famously dismissed the Supremes as a group of “Grand Ayatollahs” who have “wrested away from the people the power to decide what is right and what is wrong and, at the most fundamental level, how we should lead our lives.”
But support for this idea, which Hertzburg dubs “ingenious,” spans the ideological spectrum. “As the Court’s power has waxed, its reputation has waned. It could use a therapeutic dose of democratic legitimacy,” Hertzberg writes.
Having term limits would solve a variety of problems. Time spent on the court has crept up from an average of fifteen years during the period from 1789 to 1970 to 26 years today. As the court’s importance has grown, justices tend to “hang on well into senescence” until a President who shares their views takes office. “Presidents, for their part, seek to extend their influence into the far-distant future, by finding the youngest nominee they can get away with,” Hertzberg writes.