Bring the Justices Back to Earth

Given the very real possibility that the Supreme Court will overturn the Affordable Care Act, liberals are concerned that the right-wing tilt of five justices and lifelong appointments ensure a decades-long assault on the power of Congress. This is especially likely given the relative youth of the bloc’s conservative members: an average of 66 years old, when the last 10 justices to retire did so at an average age of 78.

The situation brings to mind a proposal voiced most prominently by Gov. Rick Perry during his run for the Republican presidential nomination: judicial term limits.

The idea isn’t new. High-ranking judges in all major nations, and all 50 states, are subject to age or term limits. The power to invalidate legislation is, in a sense, the ultimate political power, and mortals who exercise it need constraint. So why not the highest court in the land?

One reason sometimes given is that Congress could not enact strict limits without amending Article III of the Constitution, which provides that justices hold office for the period of their “good behavior.” Long lives were uncommon in 1788, so the issue of prolonged service was not considered by the framers.

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