Justice Sotomayor on Supreme Court Term Limits

Rick Pildes at Election Law Blog calls attention to a post by Fix the Court that includes audio and some excerpts from an interview Justice Sotomayor did at the University of Zurich last year. Fix the Court — a leading advocate of radical Court “reform” — seems to want to spin Sotomayor’s comments as good news, but Pildes points out that Sotomayor seems clearly skeptical of how judicial term limits might be implemented.

In particular, she seems to think that term limits could not be applied to the current justices, which she correctly points out would mean that the reformers would not actually get what they most care about which is altering the current composition of the Court.

Her remarks include this provocative claim:

In the American system, the problem with a term limit is how will they institute it, because I am promised my job for life, and that can’t be taken away constitutionally — I don’t believe even with a constitutional amendment — because you cannot have a retroactive law changing something that you’ve earned.

So that means that a current court at the moment these term limits exist, those justices will be there for as long as they want, so you might not get the value of term limits in the United States because of that inherent difficulty.

Perhaps she has been hanging around judges from other countries so much that she has developed some sympathy with the theory of “unconstitutional constitutional amendments?” Not sure how many of the current justices would agree with her analysis that judges have a property interest in their seat that would supersede even a constitutional amendment, but I suspect a statutory effort to limit the terms of the justices would get a chilly reception at the Court.

Oh well, there’s always Court-packing, which I’m sure will become an exciting topic of conversation again as soon as the Democrats reclaim Congress and the White House. Even if it has gone into dormancy for the moment.

You can find the Presidential Commission’s discussion of judicial term limits in its report here.

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