One of the few not-crazy ideas in Rick Perry’s book Fed Up! is a proposal to limit each Supreme Court justice’s term to 18 years and stagger the terms so that a new justice is appointed every two years. This is not a terrible idea, and it is embraced by a number of very prominent liberals. Jonathan Chait makes the case:
The current system of lifetime tenure creates real problems. Huge policy swings hinge on the simple health and longevity of Supreme Court justices. This results in very old justices clinging to their seats until a sufficiently friendly president can take office. It also gives presidents an incentive to nominate the youngest possible justice who can be confirmed, as opposed to the most qualified possible justice. And eliminating some element of the sheer randomness by which each party gets to appoint justices would tend to reduce the chances of the court swinging too far one way or another from the mainstream of legal thought.
So, unlike Perry’s indefensible claim that Medicare and Social Security are unconstitutional, reasonable people can actually disagree on whether we should amend the Constitution to eliminate life tenure on the Supreme Court. Nevertheless, the downside of term limits outweighs the upside.
Chait suggests that Perry’s proposal will reduce the problem of “the court swinging too far one way or another from the mainstream of legal thought,” but it’s pretty clear that the opposite is true. Under Perry’s proposal, every two-term president would appoint four justices — just one shy of the amount necessary to control a majority of the Supreme Court. That means that if one of the five other justices dies — as Chief Justice Rehnquist did during the Bush Administration — or takes early retirement — as Justice O’Connor did while George W. Bush was president — a single president’s nominees will have total control over the Constitution.
In the Bush Administration, this would have meant the near totally elimination of civil liberties for suspected terrorists — as that was the single most important constitutional issue to President Bush. Imagine, however, an America where Rick Perry serves two terms and is allowed to appoint a fifth justice. Perry doesn’t just think that Medicare and Social Security are unconstitutional, he also rejects the constitutional basis for “federal laws regulating the environment, regulating guns, protecting civil rights, […] creating national minimum wage laws, [and] establishing national labor laws.” If five Perry justices joined the Supreme Court, America would become a far more cruel nation almost as fast as you can say “writ of certiorari granted.”
One of the primary roles served by our Supreme Court is maintaining the stability of American law. This occurs in part because judges are supposed to be concerned with precedent, but it also occurs in part because justices serve a really long time. There are certain downsides to this longevity, but the cost of allowing one president with an extremist vision of the Constitution to effectively seize control of our founding document is too great to more forward with Perry’s specific proposal.