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Prof. Rob Natelson: Justice Ginsburg and the argument for judicial term limits

Published in Blog on February 11, 2019 by Convention Of States

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The Convention of States resolution calls for a term limits amendment, but it doesn't limit convention delegates to term limits for members of Congress.

Our resolution allows term limits for any and all federal officials, including Supreme Court justices.

In a recent article, constitutional scholar Prof. Rob Natelson outlines the case for term limiting justices. Here's an excerpt:

The problem of justices outliving their judicial capacity has recurred throughout U.S. history. But it may be growing more acute, as advances in health care enable physical strength to outlive mental capacity.

We do not yet have a satisfactory mechanism for addressing the issue. No statute forcing justices to leave office would be valid because the Constitution specifies that they “hold their Offices during good Behavior.” That’s a rough translation of the Anglo-Latin formula, “quam diu bene gesserit.” It literally means “so long has he shall have conducted himself well.” Justices serve until their death, retirement, resignation, or impeachment-and-conviction, whichever comes first.

And the solution? A fixed term of service.

...a fixed term would correct a growing defect in the Constitution’s system of checks and balances. When the Constitution was adopted, life expectancy was much shorter than it is now. Justices appointed during the 1790s served an average of only 8-9 years before they died or resigned. When the court erred or overreached itself, the elected branches of government could respond through regular judicial replacements. Today, however, the average service on the court exceeds 20 years. Justice Anthony Kennedy continued his course of sometimes idiosyncratic decision making for more than 30 years.

Thus, a single term would restore the balance of legislative, executive, and judicial powers to one more consistent with the constitutional design.

Click here to read the full article.

Congress is unlikely to propose such an amendment, which is why the people and the states must take the lead with an Article V Convention of States.

A Convention of States is controlled by the states and has the power to propose constitutional amendments, including an amendment that limits the terms of office for a variety of federal officials.

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