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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to civil discourse. This podcast will use government documents to illuminate the workings of the American government and offer context around the effects of government agencies in your everyday life. Now your host, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, political science professor.
N. Rodgers: Hey Aughie.
J. Aughenbaugh: Good morning Nia. How are you?
N. Rodgers: I'm excellent. How are you?
J. Aughenbaugh: Well, I'm good because listeners today, we are going to be talking about one of my favorite federal government institutions and perhaps reforming it.
N. Rodgers: You do love the Scot, don't you?
J. Aughenbaugh: Yeah. I have made a career out of studying the least understood institution of the federal government.
N. Rodgers: What's funny is sometimes they're the least understood, and sometimes they're absolutely the clearest, but sometimes they're just nakedly openly what they are and then sometimes they're all mysterious. It was a dark and stormy night and the Supreme Court met. You know that kind of thing? Get into that, but I have I have an assignment for you today.
J. Aughenbaugh: This is a role reversal. For listeners, if you don't know the long history between Nia and I. Nia first met me when she was a student and I actually gave her assignments. I imagine she's particularly enjoying the turnabout.
N. Rodgers: Here's my assignment for you. Are you ready? Take a stretch. You ready?
J. Aughenbaugh: No, I'm following the sage wisdom of former Justice Scalia, when he told the Duke University Law School when he was about ready to start a speech about administrative law, that they should sit back and grab the arms of their chairs because administrative law was not for sissies. In the chair that I am sitting in right now, I am actually grabbing.
N. Rodgers: The arm of it.
J. Aughenbaugh: Here's your word.
N. Rodgers: Here's your assignment. Supreme Court term limits Colon Discuss. Don't you love those assignments that you used to get from professors and you would say, well, how long does this writing need to be and they would say, as long as it takes to cover the topic? You're like, oh, really?
J. Aughenbaugh: Yes.
N. Rodgers: Give me a break, but anyway, the reason that I'm asking you in terms of discuss is, I imagine that there's arguments on both sides of term limits. There's like, yeah, term limits. People should only serve for five years and then they need to go away or whatever. Then there's on the other side, yes, but if you give term limits then you bring into things politics but there's all the different arguments. Can you tell us what the arguments are about term limits for the Supreme Court?
J. Aughenbaugh: Yeah. Listeners, earlier this year, President Joe Biden announced that he would be asking the United States Congress to consider some proposals to reform the United States Supreme Court. In particular, the one that probably generated the most attention, particularly in the popular media, was this idea of term limits for the justices.
N. Rodgers: Would that require a constitutional amendment?
J. Aughenbaugh: Well, that's part of the debate because those in favor believe that Congress could merely pass a law and a president could sign it that would institute term limits for Supreme Court justices. Those against the idea argue it will require a constitutional amendment, and we'll get to that in just a moment, but he made the announcement by writing and opinion editorial in the Washington Post.
N. Rodgers: Cassada always goes well.
J. Aughenbaugh: Yes. In it, he proposed three reforms and we're going to focus on one of the reforms. The three reforms were term limits, a constitutional amendment that would basically overturn the Supreme Court's recent ruling in the Trump immunity case, and then ethics legislation that would be binding on all federal judges. Now, here's the quote from President Biden's opinion editorial, "Term limits would help ensure that the court's membership changes with some regularity. I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court." Term limits for Supreme Court justices is not a new idea Nia. In fact, it's received quite a bit of recent attention because in 2021, President Biden issued an executive order that created a bipartisan commission of scholars, judges, practitioners that would produce proposed Supreme Court reforms. The majority report of that commission actually did not take a stance on implementing term limits, which disappointed quite a few typically liberals because right now, and to put this in context, Nia, historically, we have seen calls to reform the Supreme Court when one side of the ideological spectrum believe that the Supreme Court has become too activist, has gone off the rails, etc.
N. Rodgers: For instance, during the '60s, the Republicans were calling for reform because the court was doing a lot in terms of what they perceived as progressive liberal Civil Rights Act and all that other kind of stuff. You get the Republicans, the more conservative people saying, this thing's getting out of hand. What's going on here? Now you're getting a more liberal side saying, what's going on? I mean, they say the exact same things but just about different courts.
J. Aughenbaugh: Yeah, because you gave a really good example. After the Warren Court began to issue a series of rulings in regards to civil rights, those accused of crime, etc, it wasn't so much a Republicans. It was conservative Southern Democrats, who in particular.
N. Rodgers: Okay, conservatives.
J. Aughenbaugh: Conservatives in both political parties. Today, it's liberals because you have liberals who are upset with the Dobbs Vs Jackson abortion ruling, the Bruin decision regarding the Second Amendment, this most recent Supreme Court term where the Roberts Court issued a ruling that basically said presidents have potentially some extensive immunity from for being prosecuted for their behavior while in office. You also had a series of administrative law rulings where liberals were like this is completely overturning the modern administrative state.
N. Rodgers: The Chevron.
J. Aughenbaugh: Yeah, the overturning of the Chevron deference. Then, of course, you have a series of ethics, if you will, scandals. You got Clarence Thomas.
N. Rodgers: You've got.
J. Aughenbaugh: You got flying of flag controversies, you got Supreme Court justices ruling on cases of publishers that have paid them advances and royalties over four million dollars. I'm looking at you, Justice Sotomayor, etc. You got Justice's wives, see Clarence Thomas, and, you know, his wife, Jenny, who seems to be very active in still pushing this narrative that the 2020 presidential election was stolen from former President Trump. You got a lot of stuff going on where people are.
N. Rodgers: Some day J. Rob just doesn't want to even get out of bed.
J. Aughenbaugh: I got to think that John Roberts is just like, could you all just give me one term?
N. Rodgers: One or even just like one month.
J. Aughenbaugh: One month.
N. Rodgers: Without drama.
J. Aughenbaugh: Without drama. Could we just go ahead and have an entire term of tax cases? No guns, no abortion, no religion, no freedom of speech, no administrative law, no presidential administration allegedly.
N. Rodgers: Nothing that the Press will want to report on.
J. Aughenbaugh: To report on, yes. I want June of 2025.
N. Rodgers: My favorite bribes afterwards.
J. Aughenbaugh: Yes, I want a June of 2025 to where we don't make the front page of any major newspaper.
N. Rodgers: Good luck, J. Rob. We're living in controversial times.
J. Aughenbaugh: Yes, the Biden commission was divided on this issue of term limits. Part of the issue gets at something that you just asked, Nia. No matter what form term limits would take, and we can go ahead and discuss the mechanics of term limits in just a moment. One of the core debates is whether or not term limits could be enacted through a law passed by Congress, or would it require a constitutional amendment. The reason why there is this debate is once again, as you and I have commented a number of times on this podcast. The language of the Constitution isn't all that clear.
N. Rodgers: Because that's the thing you want to leave up for debate.
J. Aughenbaugh: Article 3.
N. Rodgers: I have to think that the founders when they wrote the Constitution had such a mutual understanding of what they were writing that they didn't think it was important to spell it out. They're like, well, everybody's going to know what we mean when we say the thing. Not thinking that 250 years later people are going to go, what the heck, does that mean?
J. Aughenbaugh: Or the other plausible alternative is so much of the Constitution was a compromise that they only had.
N. Rodgers: Could you vague that up for me?
J. Aughenbaugh: It's what scholars refer to as bounded rationality. We can only go so far with being rational. At some point, we just throw up our hands, and we look across the table and we say, what will you accept? It's like negotiating within your family to try to decide, what form a family reunion will take or trying to negotiate with your friends.
N. Rodgers: No, even more common your friends about where to go to dinner.
J. Aughenbaugh: Where to go dinner.
N. Rodgers: Which turns into a whole thing until finally somebody says, what can we all just do.
J. Aughenbaugh: Yes. Now, in my more, shall we say sarcastic moments, the other motive that I impugn the framers with is, they're right now metaphorically in their grave saying, this is fun watching them trying to figure out what we were actually trying to go across.
N. Rodgers: It might be right. They might have just been trying to be mysterious. Is the argument that because the Supreme Court is mentioned in the Constitution, as its own independent body, that the Congress can't put limits on it, that it would have to be of the people, like it would have to be an amendment? Is that the argument for why you would have to have an amendment?
J. Aughenbaugh: Well, the argument for why it needs to be an amendment is found in Article 3 Section 1. It's the beginning of Article 3. The judicial power of the United States should be vested in one Supreme Court in such inferior courts as Congress may from time to time ordain and establish. But here comes the key sense. The judges, both of the Supreme and inferior courts shall hold their office during good behavior. There is no mention of term limits whatsoever in Article 3 Section 1. Those who think that Congress could pass such a law point to the fact that there's no prohibition on term limits mentioned in Article 3 Section 1. On the other hand, those who believe that you can only get term limits with a constitutional amendment say, there is no language suggesting that Congress can affect the tenure of federal judges.
N. Rodgers: As long as you have some vague idea of what good behavior is.
J. Aughenbaugh: Yes, unfortunately, for those who believe that we could institute term limits through a Congressional Act, the only two times the Supreme Court according to scholars, the only two times the Supreme Court has referenced if you will, the tenure of federal judges. In both instances, the court referred to the fact that judges should enjoy life tenure subject only to removal by impeachment. This was most prominent in the Northern Pipeline Construction Company versus Marathon Pipeline Company from 1982. For liberals, they're particularly vexed because the majority opinion was written by William Brennan, one of the most prominent liberal Supreme Court justices of the late 20th century. Moreover, the second reference occurred in 2001 in the United States versus Hatter case, where Justice Stephen Breyer, another liberal. He quoted a case from 1920, citing the good behavior clause as "the practical equivalent of life tenure."
N. Rodgers: Well, I'm not sure that the Supreme should be trusted with the decision about whether the Supreme should have lifetime tenure or not. Like that's a funky.
J. Aughenbaugh: But Stephen Breyer also cites Alexander Hamilton in Federal 78, where Hamilton goes ahead and says, the federal judiciary should have the complete independence of the courts of justice.
N. Rodgers: No but you can have independence without and still have term limits.
J. Aughenbaugh: Well, now let's go ahead and talk about the pros and cons. The supporters of the Congressional statute approach, basically make an argument that, as I just mentioned, Article 3 says very little about whether term limits can or cannot be. They argue that term limits are necessary because increasingly the Supreme Court is falling in public opinion polls. The court's legitimacy has been called into question. Many Americans believe that the court is partisan, and that you would get rid of some of this because you would have constant turnover on the court. If you think about it, right now, six out of the nine justices were appointed by Republicans. They can serve for, 25, 30, 35 years. If the court is falling out of touch with the public, and its legitimacy is suffering. Perhaps you would get greater trust in the court, greater court legitimacy if you had more constant turnover, where the rulings and opinions would theoretically be more in tuned with the public. Now, if you subscribe to that perspective, that does undercut the argument that the judiciary should be independent. Because the logic of the Framers was we needed judicial independence so that they could issue unpopular rulings and not be afraid of the consequences. There is the argument that the court should ignore public opinion. I like to remind my students to give you an example, Nia. I remind my students. If the Supreme Court in 1954 was concerned about public opinion, they would have said in Brown versus Board that segregation was constitutional.
J. Aughenbaugh: Because the overwhelming majority.
N. Rodgers: Clearly, you don't want the court to lean only into public opinion because sometimes the public is wrong or sometimes the public is not ready. In my personal opinion, gay marriage. I have no problem with same sex marriage. I think that I personally don't care who marries. To me, it's none of my business.
J. Aughenbaugh: Not your business and ain't mine.
N. Rodgers: You want to enter into marriage, you want to enter into a marital contract with somebody, as long as that's a functioning adult individual who can consent, go forth and do your thing. But if that were left to public opinion, that public opinion has only been relatively recent.
J. Aughenbaugh: Recent. Yes.
N. Rodgers: Could, in some areas, like if it were left to the states, be illegal in some parts and not in other parts. I don't think I buy the side of the argument. I don't think I buy the point of they should follow popular opinion. I think that's not a good idea. We get some really stupid stuff being popular, like Tide Pods. Kids reading Tide Pods for a while. That was wildly popular. Should the Supreme Court eat Tide Pods? No. Should they say that it's a good idea? No. Do you know what I mean? Anyway, you got to be careful with popularity because popular isn't always right or ethical.
J. Aughenbaugh: There are two other justifications for why we need to have term limits. I've already mentioned the court has lost institutional legitimacy in the eyes of the public. The other two is that the court's current membership, its decisions, and selection process has become extremely partisan. We've discussed that particular, if you will, issue on this podcast a number of times. It still blows my mind that John Roberts did not receive almost 100 yea votes in the Senate. A third of the senators voted against John Roberts.
N. Rodgers: I'm not trying to be difficult because we all know I love J. Rob, but he is made of milk toast. If a third of the people disagree with John Roberts, just on principle, you're like, "How is that even possible?"
J. Aughenbaugh: Neil Gorsuch. I get it. He filled Scalia's seat. Democrats believe that the Senate Republicans stole that appointment from Barack Obama, yada, yada, yada. Neil Gorsuch eminently qualified. He should have received easily 80-85 votes. Likewise, Ketanji Brown Jackson, she barely squeaked by. This is one of the most accomplished.
N. Rodgers: Justices to come on the court in a long time.
J. Aughenbaugh: In a long time, I'm just like, yes, this has become extremely politicized. Their third argument is the United States is an anomaly among many Western democracies, in fact, most Western democracies, because our federal court judges don't have term limits.
N. Rodgers: The most have term limits?
J. Aughenbaugh: Most half term limits. For that matter, most states have term limits for their judges.
N. Rodgers: I didn't realize that.
J. Aughenbaugh: Most have term limits or age limits.
N. Rodgers: Now, wait. I remember we did an episode where we talked about a justice who set her term limit, and she wasn't going to step down, and what are they getting to do. Then they finally made her step down.
J. Aughenbaugh: We're talking about Judge Newman on the Federal Court of Claims, which is a very technologically-based court. She's in her 90s.
N. Rodgers: There's no question she doesn't understand the topic. She's just a bit old to be justicing according to her opponents and her colleagues.
J. Aughenbaugh: The Chief Judge of that court, pointed out that she increasingly takes a longer time to produce opinions in cases where she's writing the majority opinion. There's some pretty significant arguments here. The opponent or the proponents for the congressional approach point to the fact that increasingly, justices are serving a longer amount of time.
N. Rodgers: Well, humans are living a longer amount of time. I'm sorry.
J. Aughenbaugh: Go ahead, Nia.
N. Rodgers: No. I interrupted you, and now I've interrupted you again. Sorry, the average tenure?
J. Aughenbaugh: The average tenure of a Supreme Court of Justice since 1970 has been 26.1 years.
N. Rodgers: Sounds like a prison sentence. What was it before that?
J. Aughenbaugh: Well, it's an increase. It's an increase of 14.9 years. Before 1970, the average tenure of a Supreme Court of Justice was roughly 15 years.
N. Rodgers: Now, they're just sticking around a lot longer.
J. Aughenbaugh: Significantly longer than the two-term limit for the President, but even then, it was less than to the average tenure for members of congress, but that's where the different podcast [inaudible 00:27:42] .
N. Rodgers: That's going to need adult beverages. I have a question for you about that. Just from your knowledge of the Supreme Court. Is that because younger people in part, because younger people are also being put on the court? Didn't back in the day, didn't they really put in older people who were in their retirement years almost to you're getting at that age of your late 60s, 70s?
J. Aughenbaugh: Not so much the retirement years, but it was considered the end of the career pinnacle achievement. You know what I'm saying?
N. Rodgers: You did it when you were older and later in your career?
J. Aughenbaugh: You got out of law school, you went to work for government, you went to work in private practice, you might have been a state judge, you may have been an elected official. Because we don't have elected officials serve on the Supreme Court anymore. But Lewis Powell would be a good example of what used to be the norm. Lewis Powell was put on the Supreme Court by Richard Nixon in his mid 60s. He had been president of the American Bar Association. He had been a practice and attorney in Richmond for multiple decades. He had been the president of the Richmond City School Board. This was the end of his career. But if you think about, for instance, Brown Jackson, she's early 50s. Clarence Thomas was put on the Supreme Court in his early 40s. Presidents are viewing appointments of justices as a way to continue their legacy. You pick them younger. They serve on the court longer because of medical science.
N. Rodgers: Just age. If you start younger, you're going to stay longer, probably.
J. Aughenbaugh: These are people who have been wanting to be on the court. Lewis Powell, even if he wanted to be on the court, never thought he was going to end up on the court. The subject to my dissertation, Byron White. He was a practicing attorney in Colorado, and he thought he had a good life. Then his old buddy, John Kennedy, ran for president. He chairs the Colorado Democrats for John Kennedy, does a good job organizing the state. The Kennedy administration says, "Hey, come to work in our Justice Department." Even then he thought, "I will do this for two or three years, and then I'll go back to Colorado, and I will just be lawyer Attorney White." He didn't think that that was going to be his career. Ends up serving until the Clinton administration. There are some really good arguments for term limits, but in particular, because of the vagueness of the language of Article 3 Section 1, you could plausibly say, congress could [inaudible 00:31:14] . Now, of course, the great irony is, if congress did go the legislative route.
N. Rodgers: Somebody would sue and, it would go before the Supreme Court.
J. Aughenbaugh: The Supreme Court.
N. Rodgers: Have you seen whether it was constitutional or not?
J. Aughenbaugh: You remember.
N. Rodgers: So far, precedent would not be in their favor, because so far the precedent is no, there are no term limits, supreme court
J. Aughenbaugh: No. There isn't, the court. Yes.
N. Rodgers: It probably would not go in that favor.
J. Aughenbaugh: Yes.
N. Rodgers: Are you saying that it's more likely that it would happen if it were a constitutional amendment? Because then all the states would have agreed not all the states, but majority of states would have agreed.
J. Aughenbaugh: For non-American listeners, and maybe for those listeners who are not very familiar with the amendment process. There are basically one dominant method for amending the US Constitution. Two thirds of both houses of Congress. Then if it gets through, then you get four fifths of the states. Neither the President nor the Supreme Court has any role in the amendment process.
N. Rodgers: It takes forever.
J. Aughenbaugh: It takes forever.
N. Rodgers: It takes takes forever to get the states to agree to do.
J. Aughenbaugh: Yes.
N. Rodgers: Three fourths of the states.
J. Aughenbaugh: The other amendment process is a constitutional convention gets called. The danger with that particular process is, you may call a convention to institute term limits for the US Supreme Court but the convention can go ahead and address.
N. Rodgers: While we're here.
J. Aughenbaugh: While we're here.
N. Rodgers: Since we're hanging around, let's get some other stuff taken care of, too.
J. Aughenbaugh: See the Constitutional Convention of 1787. Because that convention was only supposed to revise the Articles of Confederation. The first thing that it did was scrap the Articles of Confederation, and decide to write a brand-new constitution.
N. Rodgers: You got to be careful about that constitutional convention.
J. Aughenbaugh: Convention, yeah.
N. Rodgers: Those are the two paths where you would get term limits. What's the argument against term limits?
J. Aughenbaugh: There are three primary arguments against term limits. One, the limits would threaten court stability and independence, which we've touched upon already. Second, term limits would actually increase political polarization, not decrease it. I'll offer an explanation for that in just a moment. Then the third, we've already talked. Term limits are unconstitutional. You need to get a constitutional-.
N. Rodgers: According to the Supreme.
J. Aughenbaugh: Yes.
N. Rodgers: Right. See earlier note of you would have to go the hard ground.
J. Aughenbaugh: How would term limits threaten court stability and independence? That's the first argument. Supreme Court issue rulings, and they become precedents, in an area of law. If you change the membership every two years by forcing one justice off and adding a new one, you could potentially insert more instability, not less in Supreme Court rulings.
N. Rodgers: I can see that. Cases would start doing that thing where they wait to get the right mix of Judges you'd get all shenanigans. That's the word I want. You get lots of shenanigans going on trying to get the right court at the right time.
J. Aughenbaugh: There's a well known study done by a bunch of judicial politic scholars, where they did a computer simulation and they assume that presidents with term limits appointed moderate justices.
N. Rodgers: That's quite the assumption.
J. Aughenbaugh: But that's actually one of the claims made by proponents of term limits. You're not going to get extremes, because you don't have to worry about packing the court with your loyalist all you got to do is wait two years, and you'll have an appointment.
N. Rodgers: Got you.
J. Aughenbaugh: They assumed the appointment of moderate justices, but with no deference shown to precedent. The study estimated that term limits, if they had existed from the beginning of when the Supreme Court issued Roe V Wade, Roe would have been overruled and reinstated three times in three decades.
N. Rodgers: People would say, I don't know what the law is.
J. Aughenbaugh: That's right.
N. Rodgers: It's this thing now, but it may be something completely different two years from now or four years from now or what have you whenever the next term.
J. Aughenbaugh: If proponents of term limits will argue, you would not see these huge shocks to the system because precedent is being overturned. This study says, statistically, you're wrong and they also predicted what you mentioned, there would be more attempts to game the system. We will hold off on bringing a particular case.
N. Rodgers: That's what I do and I'm not trying to be ugly, but you want the most favorable court possible if you want to win and hardly anybody goes before the Supreme Court hoping to lose.
J. Aughenbaugh: Yes.
N. Rodgers: The losing side in each case. That's not a big feather in your cap for your law firm or whatever. You want to be on the winning side. I'd game the system as an attorney, because what I care about is my client winning.
J. Aughenbaugh: That's right.
N. Rodgers: I don't care about the greater moral ethical, whatever yada, I'd be like, that's nice, but I need my guy to win.
J. Aughenbaugh: That's right. We've already talked about term limits could possibly hurt Supreme Court independent. Because, again, the argument is, we need a court that is more in tuned with the general public.
J. Aughenbaugh: We've already discussed that. Another argument is opponents to term limits actually believe term limits would intensify political polarization. The reason why they say this is you would have more frequent turnover among the justices. You would have to have more appointments, which means more Senate confirmation hearings, what's the incentive for the opposition party in the Senate to go along? They could theoretically, by slow walking a president's appointment to the Supreme Court, create a vacancy, of, nine months, 12 months, 15 months, 18 months, so that when the next justice has to leave, you're now with two vacancies.
N. Rodgers: They would game the system.
J. Aughenbaugh: Yes.
N. Rodgers: The partisan folks would game the system.
J. Aughenbaugh: The system in the Senate.
N. Rodgers: Can I just throw out that if a president wanted to set fire to the place, they could pick somebody who would be so controversial and political and partisan that it could cause an entire lockup of the Senate, not just for that hearing, but for everything that come while it gets thought out in public.
J. Aughenbaugh: Okay so listeners, I'm just going to.
N. Rodgers: I'm not saying that anybody would do that, but President Rogers might [inaudible 00:40:52] just fun. I'm saying it's a possibility.
J. Aughenbaugh: Well, listeners, real quick, I can give you a scenario here. Let's just say, for instance, you're a president who doesn't like the current ideological balance or mix on the Supreme Court. You get elected president. You know your first year, Justice Rogers has to retire because her 18 years are up. Nia, what you just said, you got a president who wants to set fire to the Supreme Court institution. He goes ahead and picks John Aughenbaugh, a noted fire brand, ideologically hell bent.
N. Rodgers: Pain in the butt.
J. Aughenbaugh: Pain in the butt. He knows, because the opposition political party controls the Senate that they will never approve. Well, you have to retire. Now the Supreme Court's down to eight. Now, you're looking at the increased chances of a tie vote, which means lower court rolling stand. Now that there's only eight, the justice start doing their own internal strategic decision making where they're like, well, we can't take controversial cases because they'll end up in tie vote. We're now only going to go ahead and deal with noncontroversial cases.
N. Rodgers: Then it starts to look like they're not doing anything.
J. Aughenbaugh: That's right.
N. Rodgers: The press is not going to report on the boring stuff. Which means it'll look like the Supremes are not doing anything. A president could really gum up the works.
J. Aughenbaugh: This potentially decreases public's approval of the Supreme Court, because the Supreme Court isn't dealing with the tough cases. Instead of improving the court's legitimacy in public approval, it could actually have a negative impact. These are all very plausible scenarios. It would not shock me if Trump would want to do something like this.
N. Rodgers: Well, or any president who believes that the institutions are broken.
J. Aughenbaugh: Yes.
N. Rodgers: Could in fact, use this to further break the institutions.
J. Aughenbaugh: Yes.
N. Rodgers: See, I told you they were broken.
J. Aughenbaugh: Which is the claim made by populist political figures. The institutions are broken and are controlled by elites. We need to go ahead and weaken their power or destroy them. It doesn't necessarily have to be a Donald Trump. We've had other populist figures in the United States, in the history in the United States. There's populist leaders in Western democracies. We have populist leaders in countries like Argentina today. Look at the institutions, the quality of the institutions in Argentina, there right now. They barely have a functioning, if you will, country, let alone government. You make a really good point here. There's one final thing that the opponents argue, and that it would be obviously unconstitutional. In particular, they point to the fact that President Biden's reform proposal that he announced earlier in the year, Nia. The idea would be that, let's say Nia, you're on the Supreme Court.
N. Rodgers: Huzzah.
J. Aughenbaugh: Yes. Which, interestingly enough, listeners, that's probably like one position Nia has not said that she would like to have in the federal government.
N. Rodgers: I do not want that job. I want many jobs, but I don't want that one.
J. Aughenbaugh: It just dawned on me that of all the things we have discussed, of all the positions in the federal government we have discussed, where Nia has said, hey, when I am X, she has never said, when I am Chief Justice of the Supreme Court. Anyways.
N. Rodgers: She never will. That's a hard job.
J. Aughenbaugh: Let's say, listeners, Nia is a justice on the Supreme Court. Her 18 year term limit is up. In President Biden's proposal, she would then move to what's known as senior status. In senior status, she could still continue to serve on court cases, particularly for the lower courts who might need a seasoned experienced justice to fill in on a panel, because their workload is high or extensive, or a number of their judges had to recuse themselves, whatever the case may be. But again, how does that square with the language of Article 3 of the Constitution that says, you get to serve in good behavior. You've actually been removed, from your current position. Again, there's a potential issue here. If we want term limits, the safest route, though, the slowest route to make it happen, would be to enact what?
N. Rodgers: A constitutional amendment.
J. Aughenbaugh: Constitutional amendment.
N. Rodgers: Also, what we really would have to do is restructure the judiciary, so that there was like an emeritus.
J. Aughenbaugh: Yes.
N. Rodgers: Board.
J. Aughenbaugh: Yes.
N. Rodgers: You retire from active Supreme Court duty into the emeritus board. Then the Supreme Court emeritus, could be drawn from if it needed to.
J. Aughenbaugh: Yes.
N. Rodgers: But those people are no longer day to day going into the Supreme Court and doing the day to day work of the court.
J. Aughenbaugh: There's already a model for this. Retired Supreme Court Justice David Souter still occasionally serves on lower federal appeals court panels. Sandra Day O'Connor used to do that with some regularity. We see this, for instance, with the military. You can retire from the military, but then you can get called up into active service in the future, if you are physically and mentally capable of doing so. There's already, if you will, various models or precedents for this. But again, how do you square that with the language of Article 3 Section 1?
N. Rodgers: What really the problem here is that it's really complicated. This idea of, we should just have term limits. Then people stop there without thinking about all the carry on of term limits or we should have no term limits, and they don't stop and think about the carry on of that. Or how it's gotten us where we are now. But pulling this knot apart, I would think would be super complicated in terms of how do we even do this going forward? What do we do with the justices we already have? They were appointed under one system, so what people really want is term limits on the current justices they don't like.
J. Aughenbaugh: Yes.
N. Rodgers: Which it wouldn't apply because anybody will tell you when you get hired at the federal government, you were hired under whatever the current set of rules are. For a long time, there was a retirement system with the federal government, and then it changed. Well, everybody who was retired or hired under the old system got to retire in that way, but the new people retired under the new system because that's how government works. They just say, as of July 1, everybody who's hired after that, it applies to or whatever, because it's the only fair way to do it. All these people who are like, I want term limits for Sotomayor or Thomas or Mever. You're not going to get those, no matter what. Because it's not going to be retroactive. It's only going to be going forward.
J. Aughenbaugh: Forward. Yes.
J. Aughenbaugh: Again, and the precedent has existed that the only way you can remove a sitting judge is through impeachment, right?
N. Rodgers: Right. You'd have to impeach the entire Supreme Court to start over.
J. Aughenbaugh: Which, you'll hate.
N. Rodgers: I'm just going to say, that's a slash and burn way of going around.
J. Aughenbaugh: AOC and members of her squad might want to do that to Clarence Thomas and Sam Alito, but I'm pretty sure they don't want to do that to Sonia Sotomayor or Elena Kagan and Ketanji Brown Jackson. If you start picking recusing.
N. Rodgers: Which ones you're going to.
J. Aughenbaugh: Then the defense of term limits becomes just.
N. Rodgers: Close up the window.
J. Aughenbaugh: Brazenly political. You're not trying to improve the institution. You just wanted to go ahead and issue rulings that you like. Again, that's what I can't afford to tell you.
N. Rodgers: You just want to get rid of X people.
J. Aughenbaugh: Again, I always caution my students who have these great ideas about, let's get rid of the electoral college or let's change this or change that. I'm like, okay, be careful of what you wish for.
N. Rodgers: What do you want to put into place?
J. Aughenbaugh: They're like, what do you mean? I said, do we know what will be the effect when we make these changes? It's like our discussion, a number of seasons ago when we talked about the electoral college and, in proposals to get rid of it. I'm like, okay, but won't we still have the same issue to where just a handful of states are determining the outcome of the election? Because if you're a presidential candidate and it's based on popular vote, all I need to do is.
N. Rodgers: Why would you go to North Dakota ever?
J. Aughenbaugh: Ever. I would just go ahead and focus on California, Texas, Florida, maybe a couple heavily populated, Midwestern Rust Belt states. Boom. Done.
N. Rodgers: You'd visit seven states in the entire cycle. Everybody else would just feel no love because why would you go to Wyoming? Why would you go to Montana?
J. Aughenbaugh: Why you go to Delaware or Rhode Island?
N. Rodgers: Or Maine? Why would you go where there are fewer people? You wouldn't bother.
J. Aughenbaugh: No. I would go to the heavy populated areas.
N. Rodgers: Pennsylvania, North Carolina, Florida. The big states, other than California, Texas, like the ones you mentioned New York, you'd have to get those.
J. Aughenbaugh: Yes.
N. Rodgers: Those people would be the people who pick the president of the United States. The rest of us would just be standing around going, excuse me. Do we not count for anything, and apparently, we don't.
J. Aughenbaugh: We don't.
N. Rodgers: We don't want it like that.
J. Aughenbaugh: It's like our discussion previously, Nia, of term limits for members of Congress. Sure, that happens.
N. Rodgers: Everybody wants term limits for the other guy. They love their guy.
J. Aughenbaugh: Yes.
N. Rodgers: If you ask Chuck Grassley, if they want to get rid of him, they'd be like, no. We want to keep him forever. We would like him in the zombie form. We're going to keep him no matter what. But then you say, what about the next state of and they're like, that guy, that guy needs term limits.
J. Aughenbaugh: If you pulled Iowans, what do you think about term limits for senators. Some of them would be like, let's get rid of Mitch McConnell. Let's get rid of Diane Feinstein or anybody else who serves that long. Well, what about your senator? No, I mean, he's the chair of X committee that brings home a lot of poor [inaudible 00:54:14] to the state. I got to be honest.
N. Rodgers: Can't get rid of him.
J. Aughenbaugh: We live in a state, Virginia, where our senators have been around for two, three terms. They have prominent positions. They do right by our state. I may not like all of their policy preferences, but I like the fact that because they've been in the Senate, they're bringing home some love to the Commonwealth of Virginia.
N. Rodgers: Because unfortunately, the Senate is set up on its seniority. The longer a person serves, the more power that they have, the more power for their district that they have. Why on Earth would you want to get rid of your guy? Well Kentucky would rather die than get rid of Mitch McConnell because. He's hugely powerful in the Senate.
J. Aughenbaugh: I've had students say, Nia, let's get rid of the seniority system. I said, so you would like to go ahead and see the hunger games play out in the United States Congress in regards to. Who's going to be the chair of committees? Who's going to be the speaker of the House, the Senate majority leader? I said, I don't know about you.
N. Rodgers: Or your proposal? I don't want that.
J. Aughenbaugh: No.
N. Rodgers: But all you're proposing that every two years, we start over.
J. Aughenbaugh: Yes.
N. Rodgers: Because isn't that the effect of that? Is that every two years, we'd have to find out who was in charge of what?
J. Aughenbaugh: Yes. There's no continuity.
N. Rodgers: When the membership changed?
J. Aughenbaugh: Yes. There's no continuity. The new people come in and say, whatever you guys were working on, it was crap. We have the better ideas. Those who are still around are like, wait a minute. What we did was crap? What am I? A potted plant you can just go ahead and push me in the corner and hope that if you don't water me, that I will die and wither away. I'm not going to work with you.
N. Rodgers: That's the final end game of that discussion is I'm not going to work with you.
J. Aughenbaugh: Yes.
N. Rodgers: Basically, what Aughie and I are saying is slow your role there if you think that term limits are just a fantastic idea, or if you think they're a horrific idea, and maybe sit down and really think through all of the different nuances that are involved in this.
J. Aughenbaugh: Because the permutation.
N. Rodgers: Permutations, like what.
J. Aughenbaugh: The details are going to be so important.
N. Rodgers: When they say the devil is in the details, this is what they're talking about.
J. Aughenbaugh: Yes.
N. Rodgers: Just stop it.
J. Aughenbaugh: Again, for you, proponents of term limits for federal judges, particularly Supreme Court justices. Hey, Nia and I have done, a previous podcast episode where we explored age limits for members of Congress, presidents, etc, because of issues as it relates to mental and physical capacity to do high stress jobs. We're not unsympathetic. It's just that as the more I read into this I was like, even if we can assume you don't need a constitutional amendment, how are you going to play this out to where you actually will improve the court's legitimacy?
N. Rodgers: Exactly. Can you change the court? Sure. But will you improve the court?
J. Aughenbaugh: Yes.
N. Rodgers: Jury is out. Boom. Pun intended.
J. Aughenbaugh: Yes. Well done. What a way to end that episode? The jury is out. I'm like, really? Did you plan that one there? But anyways.
N. Rodgers: I didn't. It just came to me.
J. Aughenbaugh: Yes. But again, listeners.
N. Rodgers: Thanks, Aughie. This is complicated, and people need to spend some time with it. I think.
J. Aughenbaugh: Yes. Again, listeners, to the general theme of this podcast. Nia and I encourage you all to do some research. Take a look at what's being proposed, give some thought as to what would be the intended, but also some of the perhaps unintended consequences of what's being proposed. Thanks, Nia.
N. Rodgers: Thank you, Aughie.
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