House Democrats introduced a bill on Tuesday that would impose a set term and term limits on the justices of the Supreme Court.
The bill is titled the “Supreme Court Tenure Establishment and Retirement Modernization Act” and would not expand the size of the court beyond the current group of nine justices.
The legislation is designed to permit presidents to nominate one new Supreme Court justice every two years, in the first and third year of each term they are elected to serve.
Each justice would serve a term of 18 years as an “active” member of the court. After the expiration of their term, justices would transfer to “senior” status, when they would not actively hear and decide cases but would receive full pay and benefits for life.
In the event of the death, disability, disqualification, or early retirement of any justice, the justice who most recently took senior status would serve as the ninth active member of the court.
The House Democrats appear to view the Constitutional mandate for lifetime appointments to the Supreme Court as being obsolete. They at a minimum are unhappy that Republican presidents have had a significant number of appointments in recent decades, including the three made by President Donald Trump.
Rep. Hank Johnson (D-GA) is the principal author of the legislation. He said in a statement that “five of the six conservative justices on the bench were appointed by presidents who lost the popular vote.” He accused the majority of the court of “racing to impose their out-of-touch agenda on the American people, who do not want it.”
Of course, Johnson ignores the fact that Presidents Trump and George W. Bush won a majority of the votes cast by the Electoral College which is the body that elects the president under the U.S. Constitution.
He added that his term limits proposal is necessary to restore “balance to this radical, unrestrained majority on the court.”
The bill’s co-sponsors include Reps. Karen Bass (D-CA), David Cicilline (D-RI), Steve Cohen (D-TN), Ro Khanna (D-CA), Sheila Jackson Lee D-TX), and Jerry Nadler (D-NY).
Sen. Sheldon Whitehouse (D-RI) is reportedly prepared to introduce a version of the bill in the Senate.
Democrats are ignoring a textually fatal problem the bill has under the Constitution. Article III of the Constitution establishes the federal judicial branch, and provides in Section One that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”
This lifetime appointment clause cannot be modified by an act of Congress but would require a formal amendment to the Constitution to be effective.
That will not stop Democrats from using the proposed bill as a fundraising vehicle as the midterm elections approach.