Democratic members are introducing a blatantly unconstitutional bill that would limit the tenure of U.S. Supreme Court justices to 18 years. In claiming to defend the Constitution, members like Rep. Ro Khanna (D., Cal.), Rep. Joe Kennedy III (D., Mass.), and Don Beyer (D., Va.) are offering a plan that is as illogical as it is unconstitutional. While the bill also includes a provision that I proposed decades ago for the expansion of the Court, the term limit would be dead on arrival at any court.
The new bill, seen by Reuters, would also allow every president to nominate two justices per four-year term. That is a part of a proposal that I made over 20 years ago for the expansion of the Court (here and here and here and here). Notably, such a bill would raise a severability problem for the courts. The term limits are clearly unconstitutional and the question would be whether the expansion provision could be preserved. The two provisions could be viewed as so closely related in the legislative scheme to require that the entire law be struck down.
Article III, Sec. 1 states: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” There is no term limit imposed on such service and the only method for removal is through impeachment. Alexander Hamilton in Federalist No. 78 defended this “permanent tenure” as central to insulating judges from political pressures: “In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.” Thomas Jefferson was also an outspoken advocate for this element of Article III and the necessity that judges should “hold estates for life in their offices.” The Democrats appear to be adopting the failed arguments of anti-Federalists in pursuing this limitation, a curious position for the party.
If Democrats want to reargue the anti-Federalist arguments against life tenure, they need to seek the amendment of the Constitution. While they can expand the Supreme Court without such an amendment, they cannot rewrite the Constitution to achieve this unworthy purpose of packing the Court.