In this series, members of the Northwestern Political Union debrief their weekly debates on a range of topics. All opinions expressed are those of the author alone and do not reflect the views of the Northwestern Political Union or its members.

“Before the Law sits a gatekeeper.”
— Franz Kafka, The Trial

Each justice of the Supreme Court comprises one-ninth of the highest level of the judicial branch of the United States Government. The justice is the ultimate arbiter and the canonical interpreter of the Constitution. The importance of the position is self-evident. So, too, are the politics of its succession.

Think back to the fraught nomination of Judge Merrick Garland. Justice Antonin Scalia, a stalwart conservative member of the Court, died unexpectedly and was potentially to be replaced with a moderate liberal judge nominated by President Barack Obama. Rather than lose this essential seat, Senate Republicans ran out the clock, waiting for reinforcements, and eventually went on to confirm Justice Neil Gorsuch instead — an extraordinary political maneuver, especially for the branch of our government meant to be the least politicized.

As Supreme Court appointments have become more consequential and long-lasting, parties have greater incentive to use extreme measures to influence the composition of the Court. A lifetime appointment is a long time — and is becoming longer. Justices have been serving increasingly longer tenures in the centuries since our country began.

As elections or appointments are perceived to be more important, political actors fight harder for their preferred outcome. If there are half as many Supreme Court justices in the coming century, then each appointment becomes twice as consequential. If you have been alarmed to see this logic on display so vividly over recent years, then it should be apparent that it is in the best interest of our country to lessen the perceived importance of individual Supreme Court appointments. The question before us now is, given that nominations will become less frequent and more contentious, what is to be done?

With this context in mind, the Political Union held a debate last Monday on the following resolution: Supreme Court justices should not be appointed for life. The discussion itself focused more precisely on whether justices should be appointed to a single 18-year term, with a seat opening every odd year such that a president will appoint two nominees per term. This is not a new idea, but it has been suggested with renewed vigor since Justice Brett Kavanaugh’s confirmation proceedings began. The vote at the outset favored this resolution.

Those who spoke in favor of the resolution, the affirmative (which, in full disclosure, I spoke on behalf of), argued that a predictable confirmation process that kept average tenures from increasing would ease some of the pressure building in the politics of Supreme Court confirmations. Justices plan their retirements to ensure that they are succeeded by someone with a similar ideology, and only the fickle hand of untimely death can provide the seemingly once-in-a-generation opportunity to swing a seat from one ideology to the other.

Term limits that provide guaranteed appointments to presidents concomitant with election victory will shift their focus away from the potential crisis of a dead judge and instead towards winning presidential and congressional elections. Further, a higher turnover of seats from one ideology to the other will mean that parties in a divided government will be more likely to nominate and vote for mutually tolerable judges, since control of the presidency will inevitably flip and the cooperation of the other party will be needed. This logic was the norm before 2000, with most justices approved overwhelmingly. As in so many things, the United States is the only major democracy with lifetime appoints to its highest judicial body, and a change would be for the better.

Those who spoke against the resolution, the negative, unconvinced that term limits would dampen partisan rancor surrounding Supreme Court confirmations, argued that lifetime tenure was essential for safeguarding an independent judiciary. The institution of the Supreme Court was designed to ensure that justices are insulated from politics and the vagaries of public opinion. They are not elected and thus the Court can act as a countermajoritarian body when the law conflicts with prevailing sentiment. Term limits would pervert this essential judicial independence. Under the proposed term limits, a justice appointed at age 50 would be able and willing to run for political office after leaving the Court at age 68. Justices would make excellent Senate and Presidential candidates. With an eye to future office, the justices would be careful to avoid voting in such a way as to diminish their appeal to the party base. This is problematic, to say the very least.

These latter arguments were convincing to many; the final vote took a dramatic turn against the resolution. I imagine the prevailing sentiment to be that things may be bad now, but alternatives are usually worse. There is no such thing as a solution, only choices with trade-offs, and the devil we know is preferable to the devil we don’t. I will allow myself only the passing remark that, in a changing world, the conservative view is at times the most radical.

The next topic will be Resolved: The United States should facilitate regime change in Venezuela. The debate will be held at the Buffett Institute, Monday, October 15 from 7 to 8 p.m.

Alex Smith is a Weinberg junior. He can be contacted at [email protected]. If you would like to respond publicly to this op-ed, send a Letter to the Editor to [email protected]. The views expressed in this piece do not necessarily reflect the views of all staff members of The Daily Northwestern.