Opinion
David Souter showed the Supreme Court how to free itself from politics By
Danielle AllenContributing columnist|AddFollowNovember 21, 2023 at 5:45 a.m. EST Make sense of the news fast with Opinions' daily newsletterArrowRight
First, a word about what’s good in the code of ethics. Critics have noted the absence of an enforcement mechanism, but spelling out bedrock norms and publicly recommitting to them helps to rebuild the guardrails of democracy. Much like the “Chicago Principles” of free expression, the court’s code of ethics doesn’t say much that’s new. But saying things out loud matters. Publicly pledging matters.
To put it mildly, our culture is confused about basic norms for good behavior. Broadcasting those norms explicitly helps to change that. Demonstrated adherence will matter even more.
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A healthy democracy cannot operate on enforcement mechanisms alone. The only way to stop sliding into a proliferation of investigative and enforcement functions — and further investigations of the investigators — is to establish robust norms for good behavior that people adhere to as a matter of their professional standing. I’m glad the court is willing to spell out its norms and take a public pledge.
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(By the way: Congress, where are your norms? I’m glad you kept your suits on, but what about your behavior?)
But to term limits. At the end of October, the Our Common Purpose Commission that I co-chair at the American Academy of Arts and Sciences released a working group report explaining how we could achieve them for justices. While the Constitution establishes that members of Supreme Court are appointed to the federal bench for life, it would be constitutional, the study group argues, for justices to have their duties modified after 18 years to take them out of the court’s ordinary work of addressing the merits of cases. They could shift to alternative duties.
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Take the case of David Souter. He was appointed in 1990 and “retired” in 2009 but continues to hear cases at the circuit-court level. Souter is the court’s George Washington.
Washington voluntarily chose not to run for reelection after two terms in office and thereby established a norm that presidents would serve only eight years. The norm held through the next 30 presidencies and nearly 150 years, until it got busted by a world war. Franklin D. Roosevelt won a third term in 1940, and then a fourth in 1944, before dying in office. Thereafter, the 22nd Amendment formally established a two-term limit.
While Souter chose this modification of duties — and the timing permitted President Barack Obama to replace him with an ideologically similar justice in Sonia Sotomayor — the requirement that all justices shift off the court to modified duties after 18 years could be laid down by federal statute. With nine justices on staggered terms, each presidential term would carry the right to make two appointments.
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The commission report spells out how we could transition to such a pattern. It also addresses the nuts and bolts of how staggered 18-year terms could work, given the role of the Senate in appointments, the possibility of midterm vacancies, and the like. There’s a lot of technical detail so, suffice it to say, the working group concludes: This plan can work! And there’s a strong case to be made that we don’t need a constitutional amendment to do it.
On the other hand, at this point, there’s not much difference between the high degree of difficulty of passing a constitutional amendment and trying to get something through Congress.
Which is why norm-setting is so important, especially right now. The Supreme Court could itself, like Washington and Souter, deliver term limits as a professional norm, just as a matter of its own choice. The justices could use the same kind of court conference and deliberative process as they did for the code of ethics to craft a basic norm of modifying their duties after 18 years.
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The first canon of the new code of ethics is this: “A Justice of the Supreme Court of the United States should maintain and observe high standards of conduct in order to preserve the integrity and independence of the federal judiciary.”
How better could our nine justices “preserve the integrity and independence of the federal judiciary” than by voluntarily embracing a practice of rotating off the Supreme Court bench to other duties after 18 years, so as to routinize the appointment process and lessen the role of politics and elections in their selection?
Oyez, oyez, oyez: Justices, hear the voice of George Washington. You, like him, have the power to set us on the right course.
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When the Supreme Court introduced a written code of ethics for itself last week, it took a small but helpful step in the direction of democracy renovation. But a bolder step awaits.
A cross-ideological supermajority of Americans thinks it’s time for Supreme Court justices to have term limits. The justices themselves could help us get there.
First, a word about what’s good in the code of ethics. Critics have noted the absence of an enforcement mechanism, but spelling out bedrock norms and publicly recommitting to them helps to rebuild the guardrails of democracy. Much like the “Chicago Principles” of free expression, the court’s code of ethics doesn’t say much that’s new. But saying things out loud matters. Publicly pledging matters.
To put it mildly, our culture is confused about basic norms for good behavior. Broadcasting those norms explicitly helps to change that. Demonstrated adherence will matter even more.
A healthy democracy cannot operate on enforcement mechanisms alone. The only way to stop sliding into a proliferation of investigative and enforcement functions — and further investigations of the investigators — is to establish robust norms for good behavior that people adhere to as a matter of their professional standing. I’m glad the court is willing to spell out its norms and take a public pledge.
(By the way: Congress, where are your norms? I’m glad you kept your suits on, but what about your behavior?)
But to term limits. At the end of October, the Our Common Purpose Commission that I co-chair at the American Academy of Arts and Sciences released a working group report explaining how we could achieve them for justices. While the Constitution establishes that members of Supreme Court are appointed to the federal bench for life, it would be constitutional, the study group argues, for justices to have their duties modified after 18 years to take them out of the court’s ordinary work of addressing the merits of cases. They could shift to alternative duties.
Take the case of David Souter. He was appointed in 1990 and “retired” in 2009 but continues to hear cases at the circuit-court level. Souter is the court’s George Washington.
Washington voluntarily chose not to run for reelection after two terms in office and thereby established a norm that presidents would serve only eight years. The norm held through the next 30 presidencies and nearly 150 years, until it got busted by a world war. Franklin D. Roosevelt won a third term in 1940, and then a fourth in 1944, before dying in office. Thereafter, the 22nd Amendment formally established a two-term limit.
While Souter chose this modification of duties — and the timing permitted President Barack Obama to replace him with an ideologically similar justice in Sonia Sotomayor — the requirement that all justices shift off the court to modified duties after 18 years could be laid down by federal statute. With nine justices on staggered terms, each presidential term would carry the right to make two appointments.
The commission report spells out how we could transition to such a pattern. It also addresses the nuts and bolts of how staggered 18-year terms could work, given the role of the Senate in appointments, the possibility of midterm vacancies, and the like. There’s a lot of technical detail so, suffice it to say, the working group concludes: This plan can work! And there’s a strong case to be made that we don’t need a constitutional amendment to do it.
On the other hand, at this point, there’s not much difference between the high degree of difficulty of passing a constitutional amendment and trying to get something through Congress.
Which is why norm-setting is so important, especially right now. The Supreme Court could itself, like Washington and Souter, deliver term limits as a professional norm, just as a matter of its own choice. The justices could use the same kind of court conference and deliberative process as they did for the code of ethics to craft a basic norm of modifying their duties after 18 years.
The first canon of the new code of ethics is this: “A Justice of the Supreme Court of the United States should maintain and observe high standards of conduct in order to preserve the integrity and independence of the federal judiciary.”
How better could our nine justices “preserve the integrity and independence of the federal judiciary” than by voluntarily embracing a practice of rotating off the Supreme Court bench to other duties after 18 years, so as to routinize the appointment process and lessen the role of politics and elections in their selection?
Oyez, oyez, oyez: Justices, hear the voice of George Washington. You, like him, have the power to set us on the right course.
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