By Harris Van Pate for Young Voices
Last month, President Biden gave a speech at the LBJ Presidential Library proposing a new policy that would reduce the term of Supreme Court justices from lifetime tenure to 18 years. In doing so, Biden claimed the move would make justices more responsive to public opinion.
If Biden’s proposal had been in place from our nation’s founding, we would be without some of the most important opinions of the Court’s prior justices, including from justices beloved by Biden’s party, such as Justice Ginsburg.
Justice Ginsburg entered the United States Supreme Court in 1993 and served until she died in late 2020, a total of 27 years of service. She was widely considered one of the hardest-working justices in modern history. Under President Biden’s proposal, Justice Ginsburg would have left the court in 2011, before issuing any of the decisions she made during the last nine years of her life and tenure.
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While another Democrat-appointed justice might have replaced her (and they may have ruled similarly), few legal minds come close to Ginsburg’s. Removing her from the Supreme Court would have deprived the court of a great thinker, writer, and judge, and many of her most popular and a-political majorities and dissents would have never happened.
Justice Ginsburg made many important decisions during her last nine years in office. In 2015, she wrote the majority opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, in which she ruled that the people of Arizona could, via referendum, give redistricting power to a bipartisan commission. This was a 5-4 decision, meaning that her vote was necessary to the majority.
She also wrote the majority opinion in the 2019 case Timbs v. Indiana, when the court ruled that the Eighth Amendment stops states from imposing excessive fines for criminal penalties. Joining Justice Kennedy’s 5-4 majority in Obergefell v. Hodges was decisive in allowing same-sex marriage to receive federal protection. Justice Kennedy, who wrote the majority opinion, was in his 27th year in the court. Without either of these justices, we might not have national protections for same-sex marriage.
While President Biden argued that an 18-year limit would protect voting rights, many of Justice Ginsburg’s most potent arguments in favor of voting rights protections would have never happened if Biden’s policy were in place. Whether joining with a majority or dissenting, Justice Ginsburg’s opinions have had an incredible impact on modern voting rights, especially after her first 18 years in office.
On her 20th year in office, Ginsburg authored her most famous dissenting opinion in Shelby County v. Holder, where three other justices joined with her dissent arguing for continued federal protections for minority voters.
During her 26th year in office, she authored a 5-4 majority opinion in Virginia House of Delegates v. Bethune-Hill, which established that state attorneys general, rather than legislators, must litigate federal racial gerrymandering cases. These cases involved alleged silencing of minority votes, and neither of her opinions would have existed had Biden’s term limits existed.
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When we hear proposals like this from powerful politicians, we should not limit our minds to the politics of the moment. Instead, we should focus on the long-term effects such a policy might have on the Court.
What seems like a good idea today might soon deny our nation the next Justice Ginsburg, O’Connor or Kennedy. Removing our nation’s most experienced justices because they have become burdensome to the current political agenda will have negative consequences that lead to prioritizing politics over the law and justice. The last thing we need is further politicization of the Court.
I sincerely hope our nation does not pass an amendment such as the one President Biden has proposed. If we do, our nation’s high court would lose its last bastion of unbiased, a-political decision-making.
HarrisVanPate is a Young Voices contributor and Policy Analyst specializing in legal and public policy at the Maine Policy Institute. He is also an Adjunct Research Fellow at the Free State Foundation and has worked for numerous public policy organizations. Follow him on Twitter @Harris_VanPate.