Democratic members have continued their unrelenting attacks on the Supreme Court and its conservative majority. This week, Senate and House members have introduced a bill to impose term limits, regularized confirmation schedules, and other changes. In introducing the legislation, Sen. Sheldon Whitehouse (D., R.I.), Rep. Hank Johnson (D., Ga.), and others have left no question that this is just the latest effort to change the balance of the Court in favor of a liberal majority. Such comments make the bill seem like little more than legislative graffiti.
The legislation, The Supreme Court Tenure Establishment and Retirement Modernization Act, would impose an 18-year maximum period for service on the Court. After that point, they would be forced to take “senior status.” It would authorize the president to nominate Supreme Court justices every two years — in the first and third years after a presidential election.
Even if the bill were able to secure a majority (which is highly doubtful), it would face immediate challenge since it adds new limits on the life tenure provision under Article III.
Any challenge would have a record full of self-defeating statements from the sponsors who leave no doubt that their true motivation is to get rid of the conservative majority in response to rulings that they oppose.
Many continue to assert that the adoption of a constitutional interpretation that they oppose is, as stated by Rep. Johnson, “a legitimacy crisis.” When the Court rules in a way that is approved by these members it is a constitutional triumph. When it fails to do so, it is a constitutional crisis.
Rep. Johnson went further to emphasize that the illegitimacy is also due to the fact that five justices were appointed by George W. Bush and Donald Trump: “Five of the six conservative justices on the bench were appointed by presidents who lost the popular vote, and they are now racing to impose their out-of-touch agenda on the American people, who do not want it.”
So, they are demanding this radical measure “as a necessary step toward restoring balance to this radical, unrestrained majority on the court.”
House Judiciary Chair Jerry Nadler (D., N.Y.) also supplied golden material for future challengers, saying that the changes are designed to combat “all the harmful and out-of-touch rulings from the Supreme Court this last year.” He added that without changing the Court “we will be left with backwards-looking majority for a generation or more.”
Other co-sponsors include Reps. David Cicilline (RI), Shelia Jackson Lee (TX), Steve Cohen (TN) Karen Bass (CA) and Ro Khanna (CA).
It also reflects a fundamental misunderstanding of the role of the Court commonly voiced by Democratic members. Sen. Elizabeth Warren, D-Mass, has declared the Supreme Court illegitimate and has called to pack the Court for rending opinions against “widely held public opinion.”
Rep. Alexandria Ocasio-Cortez, D-N.Y., even questioned the institution’s value: “How much does the current structure benefit us? And I don’t think it does.” She has now demanded the impeachment of Justices Kavanaugh and Gorsuch based on the entirely false claim that they lied under oath in their confirmation hearings. After the Dobbs decision, Ocasio-Cortez demanded “there must be consequences” for the Court.
The concern over this legislation is not whether the legislation will pass (it will not) but how it reflects a fundamental attack on both the Court and our constitutional system. There was a time, not long ago, that such raw partisan attacks would have been denounced by other members of both parties. It is now not only acceptable but popular to call for packing the Court with your political allies.
This crisis of faith is evident in other key constituencies in our system, including in our law schools. Law professors like Berkeley Dean Erwin Chemerinksy have called the justices “partisan hacks” while others have supported targeting the individual justices at their home. Georgetown Law Professor Josh Chafetz declared that “when the mob is right, some (but not all!) more aggressive tactics are justified.” Most recently, the dean and chancellor of University of California Hastings College of the Law David Faigman questioned the legitimacy of the Court after the ruling in Dobbs v. Jackson Women’s Health Organization.
From Congress to the press to academia, the very foundation of the Court is being challenged. What is notable is that these are also the voices of some of the most powerful figures in our society. Rather than seek to moderate the mob, they are fueling the rage with such reckless rhetoric. There are good-faith objections to this decision but those objections challenge the legitimacy of the holding, not the institution itself. As Benjamin Franklin noted “The U. S. Constitution doesn’t guarantee happiness, only the pursuit of it. You have to catch up with it yourself.”