Americans Agree: The Supreme Court Is Not About Justice & Term Limits Are Needed

A couple of weeks ago, I saw a YouGov poll for The Economist that delved into how people feel about the Supreme Court. Top line:

• Strongly approve- 7%

• Somewhat approve- 25%

• Somewhat disapprove- 23%

• Strongly disapprove- 23%

• Not Sure- 22%

So, 32% approve and 46% disapprove. Asked about the Court's ideology, 12% said liberal, 27% said moderate and 36% were correct in saying conservative. They also polled each justice's approval/disapproval:

• Sonia Sotomayor- 37% favorable/25% unfavorable (+12)

• Elana Kagan- 27% favorable/22% unfavorable (+5)

• Stephen Breyer- 25% favorable/20% unfavorable (+5)

• Clarence Thomas- 33% favorable/31% unfavorable (+2)

• Neil Gorsuch- 25% favorable/26% unfavorable (-1)

• Sammy Alito- 25% favorable/26% unfavorable (-1)

• John Roberts- 27% favorable/30 unfavorable (-3)

• Amy Coney Barrett- 28% favorable/35% unfavorable (-7)

• Brett Kavanaugh- 27% favorable/37% unfavorable (-10)

Gallup also polls the public on the Court periodically and this past September they found Americans' opinions of the Court have "worsened, with 40%, down from 49% in July, saying they approve of the job the high court is doing. This represents, by two percentage points, a new low in Gallup's trend, which dates back to 2000. The poll was conducted shortly after the Supreme Court declined to block a controversial Texas abortion law. In August, the court similarly allowed college vaccine mandates to proceed and rejected a Biden administration attempt to extend a federal moratorium on evictions during the pandemic... Now, a majority of 53% disapproves of the job the Supreme Court is doing, exceeding the prior high disapproval of 52% from 2016. A Sept. 9-13 Monmouth University poll found 54% of U.S. adults disagreed and 39% agreed with the Supreme Court's decision to allow the Texas abortion law to go into effect. The September survey also reveals a steep decline over the past year in the percentage of Americans who express 'a great deal' or 'fair amount' of trust in the judicial branch of the federal government, from 67% in 2020 to 54% today... [P]erhaps reflecting changes in the composition of the court or its recent decisions, a new high of 37%, up from 32% a year ago, consider the current Supreme Court 'too conservative.'... Compared with readings last year and earlier this year, Republicans, Democrats and independents are all less likely to say they approve of the job the Supreme Court is doing and to say they have a great deal or fair amount of confidence in the federal judiciary."

Last month, Quinnipiac released a poll that shows Americans of all stripes feel the Court is motivated by politics (61%) rather than by law (32%).

So what're we going to do about all this. Nothing, of course. Reporting for the Washington Post yesterday, Seung Min Kim and Robert Barnes wrote that term limits for the court are popular but the idea is going nowhere. It was the one idea Biden's commission to study the Court suggested that both Democrats and Republicans favor. Few people-- other than politicians-- like the idea of lifetime tenure. The idea of term limits for justices is more popular-- way more popular-- than any politician is. They wrote that "the bipartisan support among legal experts and the public for term limits isn’t catching on among elected officials on Capitol Hill who would be the starting point on any alterations to the makeup of the Supreme Court. Impatient liberals clamoring for change say enacting term limits would take far too long, while Republican lawmakers are loath to endorse changes they are characterizing as part of a broader effort from Democrats to politicize the judiciary."

[T]he United States remains the only major democracy on the planet without either a mandatory retirement age or a term limit for justices who serve on its highest court, according to the commission. The average tenure of a Supreme Court member has also gotten longer with time, as justices get tapped at an earlier age and people generally live longer.

“Were we writing the United States Constitution anew, there is no way we would adopt the particular institutional structure that we have for judicial tenure,” University of Chicago law professor Tom Ginsburg told the commission over the summer.

In his testimony before the commission, Ginsburg noted that of the 106 justices who have left the Supreme Court since 1789, 51 of them have died while serving. The two most recent were Scalia in 2016 and Justice Ruth Bader Ginsburg in 2020, who served 30 years and 27 years on the Supreme Court, respectively.

Public polls have indicated broad support for Supreme Court term limits, with 72 percent surveyed in a Marquette Law School poll from November favoring fixed terms over lifetime appointments, compared with 27 percent of adults who opposed them.

Still, critics think term limits-- which would ensure that each president has a set number of picks-- would deepen the notion that Supreme Court justices are directly tied to a president and his or her party and threaten judicial independence.

“There’s probably no perfect system,” conceded Sen. John Cornyn (R-TX), who as a former state judge ran in judicial elections. “I think I’m sort of in the camp of, if it’s not broken, don’t try to fix it.”

While no member of the court has endorsed the idea of increasing the membership, a couple have sounded more receptive to term limits.

In 2019, Justice Stephen Breyer-- who has faced calls from the left to retire while Democrats can still confirm his successor-- said longer term limits, perhaps 18 years, “would make life easier.” He has made similar comments since then, including this year. Breyer has served on the Supreme Court since 1994.

“I wouldn’t have to worry about when I’m going to retire or not,” Breyer said. “That would be easier for me. And moreover, it must be long. And the reason that it must be long is because you don’t want somebody looking for his next job after-- while he’s a member of the court.”

Justice Elena Kagan appeared similarly open to term limits in 2018.

“I think that what those proposals are trying to do is to take some of the high stakes out of the confirmation process, and certainly to the extent that that worked, and that people could feel as though no single confirmation was going to be a life-or-death issue, that that would be a good thing,” she said. “So I think it’s a balance among good goals.”

The Supreme Court is what stands in the way of, for example, abolishing billionaires... not to mention, just checking their power to buy the government outright thanks to the very badly decided Citizens United decision.