Liberty Amendments: Term Limits for Supreme Court Justices

This is the third post in my series discussing amendments to the U.S. Constitution proposed by Mark Levin in his book The Liberty Amendments: Restoring the American Republic. The first amendment addresses congressional term limits and the second deals with restoring the Senate by repealing the 17th Amendment and having state legislatures chose all senators.

The purpose of this series is not to debate the state conventions themselves, but to give you a summary of each amendment for the sake of discussion. His book, of course, also goes into greater detail about each amendment—the history, the rationalization, and the importance of each.

The third liberty amendment Levin has proposed aims to establish term limits for Supreme Court justices and a super-majority legislative override.

SECTION 1: No person may serve as Chief Justice or Associate Justice of the Supreme Court for more than a combined total of twelve years.

SECTION 2: Immediately upon ratification of this Amendment, Congress will organize the justices of the Supreme Court as equally as possible into three classes, with the justices assigned to each class in reverse seniority order, with the most senior justices in the earliest classes. The terms of office for the justices in the First Class will expire at the end of the fourth Year following the ratification of this Amendment, the terms for the justices of the Second Class will expire at the end of the eighth Year, and of the Third Class at the end of the twelfth Year, so that one-third of the justices may be chosen every fourth Year.

SECTION 3: When a vacancy occurs in the Supreme Court, the President shall nominate a new justice who, with the approval of a majority of the Senate, shall serve the remainder of the unexpired term. Justices who fill a vacancy for longer than half of an unexpired term may not be renominated to a full term.

SECTION 4: Upon three-fifths vote of the House of Representatives and the Senate, Congress may override a majority opinion rendered by the Supreme Court.

SECTION 5: The Congressional override under Section 4 is not subject to a Presidential veto and shall not be the subject of litigation or review in any Federal or State court.

SECTION 6: Upon three-fifths vote of the several state legislatures, the States may override a majority opinion rendered by the Supreme Court.

SECTION 7: The States’ override under Section 6 shall not be the subject of litigation or review in any Federal or State court, or oversight or interference by Congress or the President.

SECTION 8: Congressional or State override authority under Sections 4 and 6 must be exercised no later than twenty-four months from the date of the Supreme Court rendering its majority opinion, after which date Congress and the States are prohibited” from exercising the override.

The framers of the Constitution were concerned about balance of power in the government. They did not want to see an overly autonomous judiciary grow in power and overshadow the other branches of the federal government and the states.

Federal judges were expected to adjudicate “cases and controversies” that arose under federal criminal law and civil statutes—and exercise very little authority beyond that narrow scope. Contrary to the opinions of some notable Supreme Court justices and others down through the years, the reason the Framers did not specifically grant to the Supreme Court the much broader authority to judge the constitutionality of federal laws is that there was strong sentiment that such a function was well outside the authority of judges. 

The framers’ hope for a balanced government has been sidetracked in many ways. For the judiciary, this began in 1803 with the Supreme Court decision in Marbury v Madison. In that decision, Chief Justice John Marshall wrote, “The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.”

“By claiming authority not specifically granted by the Constitution,” Levin writes, “abuses of power would certainly follow, as they have.”

Although the decision has been lauded by many scholars of all philosophical stripes, the fact is that the ruling altered and expanded the Court’s limited authority to adjudicate civil disputes and criminal complaints into a judicial oligarchy with few institutional limits on its power. And the extent to which there are limits depends on the forbearance of the very courts that snatched the authority in the first place. It would “seem that if a Supreme Court majority of five lawyers has the final word on constitutional matters, then governance comes down to selecting five lawyers. This is obviously contrary to the Framers’ intent. Had the Constitutional Convention conferred such authority on a handful of individuals, which it most assuredly did not, it is indeed doubtful it would have conferred life terms upon them and provided no effective recourse.

Over the years, the Supreme Court has used its power not only to make judgments, but to set policy. Supreme Court justices have even strayed from their commitment to the Constitution itself, saying, as Justice Ruth Bader Ginsburg did, that the court should “look beyond one’s shores” to international law.

Former Associate Justice Sandra Day O’Connor was even more forceful on this point when she said, “Although international law and the law of other nations are rarely binding decision on U.S. courts, conclusions reached by other countries and by the international community should at times constitute persuasive authority in American courts.”

Levin wrote in Men in Black, “The Court has so fundamentally altered its duties, and so completely rejected the limits placed on it by the Constitution’s checks and balances and enumeration of powers, that the justices are in an endless search for extra-constitutional justifications and interventions to explain their activism.”

As he says in Liberty Amendments, the “Court that was given life by the Constitution cannot operate outside it. Its only rightful and lawful authority exists solely within and related to the Constitution.”

Levin points out that one of the biggest myths about judges is that they’re imbued with “greater insight, wisdom, and vision than the rest of us; that for some reason God Almighty has endowed them with superior judgment about justice and fairness. But the truth is that judges are men and women with human imperfections and frailties. Some have been brilliant, principled, and moral. Others have been mentally impaired, venal, and even racist.”

The  main purpose of the proposed amendment is to return the Court to its proper role within a republican system of government.

It does the following: 1) ends the lifetime term of justices and replaces it with a single twelve-year term of office with no possibility of renomination or a second term; 2) grants Congress the authority to overturn a Supreme Court decision by a three-fifths vote of the House and Senate; and 3) grants the states authority to overturn a Supreme Court decision if three-fifths of the state legislatures pass resolutions doing so. The justices individually and the Court generally retain their independence. The justices continue to select, hear, and decide cases without interference from Congress, the executive branch, or the states. Moreover, they serve for a term longer than any two-term president and without fear of political retribution. There is no change in the Court’s core judicial functions or the independence of the Court as an institution. However, the proposed amendment provides that the final say in certain matters of overarching national significant need not be left “to a mere five lawyers, allowing Congress and/or the states to act by a supermajority vote.

As for the override processes included in the amendment, it would apply only to the “four corners of the majority opinion of the specific Supreme Court decision.”

It could not be used to parse the meaning of a decision or entangle precedent. The override would simply expunge the holding of the Court. If there are conflicting rulings by lower courts within or among the different judicial circuits, these would stand as the ruling precedents on the legal and/or constitutional issues relating to the litigation in those forums.

In cases that do involve significant national interest, such as the constitutionality of Obamacare, the issue becomes how to resolve them.

Under the proposed amendment, the Court is still free to take up such cases and rule on them, but Congress and/or the state legislatures will also be free to override the decision with supermajority votes. By adding the override, for the first time justices will know that their most significant majority opinions may not solely be judged by history, but by the people who must live under them, with the possible ignominy of having a ruling overridden by a supermajority of the legislative branches. 

As for the establishment of term limits for Supreme Court justices, “the proposed amendment divides the sitting Supreme Court justices into three classes by reverse seniority, with the terms of the longest-serving justices expiring first.”

What do you think? Do you like this proposed amendment? Do you think it will help dismantle the centralized power of our government, or do you think it has too many problems of its own? What would you add to the amendment, or take away?

Levin’s 11 Proposed Liberty Amendments:

  1. Establish Congressional Term Limits

  2. Repeal the 17th Amendment and Restore the Senate
  3. Establish Term Limits for Supreme Court Justices
  4. Limit Federal Spending
  5.  Limit Federal Taxing
  6. Limit the Federal Bureaucracy
  7. Promote Free Enterprise
  8. Protect Private Property
  9. Grant States Authority to Directly Amend the Constitution
  10. Grant States Authority to Check Congress
  11. Protect the Vote

(While these are Levin’s suggestions, he has stated that others could certainly be proposed.)

  1. C. U. Douglas

    Parts 4-8 are of particular interest to me, as it gives a check to the power of the court both in Congress and in the States.  The latter bolsters LA2 — restoring State representation in government. I believe these parts will do a lot more to hold the courts in check than just term limits.

    Honestly, the Supreme Court has been the biggest problem we have because it has such sway. The selection of Justices has become so heated because policy has been dictated so much from the bench.

  2. Larry3435

    I have long favored a single 20 year term for Supreme Court Justices, and perhaps for Circuit Judges as well.

    I’m not sure how Section 5 of the proposal would work.  If a Supreme Court opinion is overruled by Congress, there are going to be legal issues about the new state of the law.  How do those get resolved without litigation.  I know what Levin meant, but the language he proposes is sloppy.

    Yet another new Avatar photo from Denise!  This time in context.  Bravo.

  3. D.C. McAllister
    C
    Larry3435: I have long favored a single 20 year term for Supreme Court Justices, and perhaps for Circuit Judges as well.

    I’m not sure how Section 5 of the proposal would work.  If a Supreme Court opinion is overruled by Congress, there are going to be legal issues about the new state of the law.  How do those get resolved without litigation.  I know what Levin meant, but the language he proposes is sloppy.

    Yet another new Avatar photo from Denise!  This time in context.  Bravo. · 1 minute ago

    Do you mean the language within the amendment is sloppy? I’m not a lawyer, so I don’t know how best to resolve it. Do you have any suggestions on how to fix it?

    [Oh and thanks Larry. :) (this one is staying. I'll stop being ADD about it)]

  4. 1967mustangman

    I think this is the greatest thing I have ever read.  I may have to buy Mr. Levin’s book.

  5. The King Prawn

    I’m not totally in despair, but I can hardly see how those elected and appointed won’t simply find yet another unconstitutional work around for any amendments we make. The founders wanted a very strong government but an even stronger chain binding it. They failed to achieve the latter end. Everything we write is still just a parchment barrier. Of course, I’ve been skeptical for a while.

  6. Mendel

    I think term limits for Supreme Court justices (of the kind Levin proposes) are long overdue.

    But do we actually need an amendment to enact them?  I seem to recall that the declaration of lifelong tenure in the Constitution is rather fuzzy.

  7. Mendel
    Larry3435:

    I’m not sure how Section 5 of the proposal would work.  If a Supreme Court opinion is overruled by Congress, there are going to be legal issues about the new state of the law.  How do those get resolved without litigation.  I know what Levin meant, but the language he proposes is sloppy.

    I agree, this seems like a recipe for confusion. 

    While some Supreme Court issues are simple yes/no votes (such as on abortion), I gather that the value of most SCOTUS decisions is not the actual decision itself, but the reasoning behind it.  Even though most politicians may have been lawyers in a previous life, I don’t want them writing judicial interpretation.

    Better to just make it easier to amend the Constitution in general.

  8. PJ

    This one is a terrible idea.  While I understand the objections to the current imperial judiciary, this would not solve it, and would likely make things much worse in a number of ways.  First, the problem is not that the current justices are life-appointees, the problem is the power the court has arrogated for itself over time.  That’s already done.  All the term limits would do is change the composition of the emperors more often, resulting in wild swings in how they use that power.

    As for the congressional override, I doubt it would be used much.  Congress already has the power to remove items from Supreme Court jurisdiction, but they never use it.  The problem here is that the Supreme Court is still held in relatively high regard, and it’s not politically feasible to mess with their decisions.  That’s an educational issue, not a structural one.

    Also, I agree it’s sloppily drafted.  The first clause sets a strict limit of 12 years, but the vacancy provision implies that someone could be reappointed to a full term if he served less than half of one when filling a vacancy, which could mean nearly 18 years.

  9. C. U. Douglas

    KP: I think the second amendment proposed will do more to that end than this. Giving power to the states will put a little more check on the Federal government. Again, it’s why I like parts 6 and 7 of this amendment. At present the Federal government can entirely override any state’s decision — and thanks to the Supreme Court for just about any reason. It’s not a guarantee, but there’s no guarantees. Sorry.

    Overall I think these are good ideas. Perhaps they need refining, but I like the concepts.

  10. The King Prawn
    C. U. Douglas: KP: I think the second amendment proposed will do more to that end than this. Giving power to the states will put a little more check on the Federal government. Again, it’s why I like parts 6 and 7 of this amendment. At present the Federal government can entirely override any state’s decision — and thanks to the Supreme Court for just about any reason. It’s not a guarantee, but there’s no guarantees. Sorry.

    The bar is too high to overrule the SC. Even something as abhorrent as the Ocare ruling could never garner the required support to be punted. As much as I believe the states need authority devolved to them, I don’t see this unusable power as being the way to accomplish it.

  11. PJ

    The overrides also misconceive the role of the court almost as badly as the liberals do. The court is there to decide individual cases, not set policy. So up to two years after a case is finally decided, Congress or the states can undo it? That will create enormous uncertainty for the litigants. Think about Bush v. Gore. What if they overrode that one? Do they unwind the 2000 election?

  12. John Walker
    Larry3435:

    I’m not sure how Section 5 of the proposal would work.  If a Supreme Court opinion is overruled by Congress, there are going to be legal issues about the new state of the law.  How do those get resolved without litigation.  I know what Levin meant, but the language he proposes is sloppy.

    As Levin explains in the book, when a Supreme Court decision is overruled by Congress under Section 4 or the states under Section 6, the effect is precisely the same as if the Court had denied certiorari on the case.  The ruling of the lower court would stand and, in the case of conflicting rulings by different circuits, those rulings would stand in their respective jurisdictions.  This already happens to about 99% of appeals brought before the Supreme Court.  It’s as if the case was never brought and decided.

    Sections 5 and 7 do not preclude another case being brought which involves the same or a similar issue.  I agree that these sections might have been more clearly drafted.

  13. Larry3435
    D.C. McAllister

    Do you mean the language within the amendment is sloppy? I’m not a lawyer, so I don’t know how best to resolve it. Do you have any suggestions on how to fix it?

    Yes.  The language I mean is:  ”The Congressional override … shall not be the subject of litigation or review in any Federal or State court.”

    Consider Kelo v. New London, for example.  You can reverse that decision about the extent of the power of eminent domain, but you cannot prevent new questions about the eminent domain power from arising, and those questions will require answers from the courts.  And what happens to Susette Kelo herself?  Does the Connecticut court decision get reinstated?  (It held the same thing as the Supreme Court held.)  So she loses anyway?

    My suggestion:  There is a process used in the California court system called “depublishing.”  The Supreme Court can “depublish” a lower court’s decision, which means no future litigant can cite the decision as precedent.  I think giving Congress that kind of a power makes more sense.

  14. EPG

    “Everything we write is still just a parchment barrier.”

    So what?

    Everything we write has always been a parchment barrier, and always will be a parchment barrier. 

    Any written constitution is only as strong as the desire of those living under it to abide by it, and, in particular, the willingness of those charged with administering the government so established to abide by it. 

    That doesn’t mean we shouldn’t have written constitutions, or that we shouldn’t abide by them.  But they only reflect a kind of consensus at their adoption, and only survive with the willingness of later generations to adopt what those who came before established.  That depends on acculturation, education, and a host of institutions — in other words, a civil society. 

    There is nothing self-executing about a written constitution.

  15. Joseph Stanko

    It’s not just the Supreme Court, the rot goes much deeper.  The whole judiciary is too powerful.  There’s too much litigation, the process is too slow, the wheels of justice need some grease.

    Why does it take years to convict criminals that everyone knows are guilty?  Why do death row appeals take decades?

    Why do we put up with frivolous lawsuits, with people suing because their coffee was too hot?  How much cost and inefficiency do so many class-action lawsuits add to our economy?

    Every time the voters pass a controversial initiative we know it will be tied up in the courts for years.

    The whole system is seriously broken.  I have no idea how to fix it, but step one is raising awareness of the problem.

  16. Z in MT

    My suggestion:  There is a process used in the California court system called “depublishing.”  The Supreme Court can “depublish” a lower court’s decision, which means no future litigant can cite the decision as precedent.  I think giving Congress that kind of a power makes more sense.

    I like this suggestion.  It allows Congress to overrule the policy overreach of the Court without denying the ability of the Court to decide individual cases.  Congress and the President have never really tried to nullify Marbury vs. Madison by just ignoring SCOTUS’s rulings (i.e. pass laws and enforce them how they see fit – disregard the opinions of the court).  The courts can really only decide individual cases, the court does not have officers to enforce their opinions they only have the ability to persuade the executive branch to enforce their decisions and persuade Congress to abide by their decisions.

    If Congress and the President both decide they disagree with decision they can just go tell SCOTUS to go pound sand.

    This would work better in our Federal system if the 17th Amendment was repealed.

  17. Michael Collins

    This won’t work.  For example, suppose Congress overrides Roe v Wade.   The Court then reissues the same decision, modified (just barely enough) to argue that technically they aren’t overriding Congress.   The Court is a small and nimble body, -far more maneuverable than a clumsy supermajority of Congress.   In fact, the Court would be the ones deciding whether they are in compliance with Section 5 to begin with.  What sanction could Congress use against them?  Instead let’s abolish the Supreme Court itself.   The Supreme Court is the only Court established by the Constitution.  Amend Article III to say that the judicial power of the United States shall be vested in such courts as Congress may from time to time ordain and establish.  In the interest of uniform interpretation Congress would likely create a single high court as the final court of appeals, -but it would still be the creature of Congress.  This leaves Congress free to abolish it, or to demote it by establishing a new high court above it.   If Congress and the President agreed about reversing a judicial decision they could simply staff the new high court with judges who accept their views.

  18. Nick Stuart

    20 year term limit for SC Justices sounds about right. Should be one for congressmen and senators too. Left or Right, they all stay way too long:  Blackmun, Marshall, Rhenquist, Ginsberg, Kennedy, Thurmond, Byrd, Helms, Hyde. They were drooling wrecks by the time they left, or were carried out.

  19. KC Mulville

    I hesitate on the congressional override. The problem is real, but the solution won’t work.

    The solution won’t work because a judicial decision is (theoretically) based on what a law means. It’s possible that nine lawyers could assert that a law means such-and-such, but then Congress comes in and overrules them. But the next Congress can trump the previous Congress’ version. In fact, it can switch back immediately on the next Congressional vote, and so on. Law becomes a tennis match, and we’re left with a legal system with interpretations that stay current only until the next vote.

    Since the really important votes are close calls anyway, frequent switches become likely.

    Originalism holds that the authority of government is based on the consent of the governed. A law is their consent, solidified. We conservatives hate the idea that the meaning of the law’s words are flexible and variable, oscillating to the current political fashion. If you want to change the law, go through the hard work of forging a new consensus … don’t cheat the process by “reinterpreting” the existing words. The authority of the law is built by going through the process.

  20. Bob Wainwright

    Overriding a supreme Court decision… the first question that comes to mind is, What about the actual litigants in the case itself? We are used to thinking of SC decisions as sweeping generalizations about what the law is and means but we can’t forget there are actual plaintiffs and defendants.  What would it mean for them specifically if the decision was overturned?

    SC decisions were never meant to apply outside the litigiants to the case but that’s where we are unfortuntely.