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♪ ♪ KATKO: Welcome, America, to "Balancing Act", the show that aims to tame the political circus of two-party politics.

I'm John Katko.

On the docket this week, the Supreme Court and its lifetime appointments.

Did the Founding Fathers get it right?

We'll investigate the case as we speak with Zachary Shemtob, Executive Editor at SCOTUSblog.com.

Then, Thomas Berry and Susanna Sherry will take swings at the issue on the trapeze.

Finally, I'll give you my take.

But first, let's walk the tightrope.

♪ The Supreme Court in the United States is the highest tribunal in the nation for all cases and controversies arising under the Constitution or federal laws.

Decisions made by the Supreme Court are binding on all of the courts in the nation and are not subject to further review.

On the docket this week, we're taking a look at lifetime appointments to the Supreme Court.

The Founding Fathers created the judicial branch in 1789, and in 1803, Marbury v. Madison established the branch as a co-equal power alongside the legislative and executive branches.

But did the Founders get it right when they awarded these justices lifetime appointments?

Some don't think so.

There's a growing push for an 18-year term limit on both sides of the aisle.

The Founders believed lifetime appointments would create an impartial judiciary, free from the political pressures that sway elected officials.

But isn't it said that everything is political?

In fact, one of the first Supreme Court justices a Founding Father himself, Samuel Chase, was impeached in 1804 for his political bias.

President Thomas Jefferson, a Democratic-Republican, opposed Chase's Federalist beliefs and urged Congress to remove him from office for letting this bias influence his court decisions.

But the Senate acquitted him the following year, and he stayed on the bench until his death.

This acquittal solidified the interpretation of Article 3, Section 1 in the Constitution, which simply states, "Justices shall hold their offices during good behavior."

So, while there is an expectation of political neutrality, for sitting justices to act otherwise would not be an impeachable offense.

Now, unless justices are convicted of treason, bribery, or some other high crime and misdemeanor, that means they're appointed for life.

That being said, although the President nominates Supreme Court justices, with Senate approval, there's no guarantee that justices will promote that President's agenda either.

Take Chief Justice John Roberts, for example.

He was appointed by Republican President George W. Bush, but he sided with Democrats in upholding President Obama's signature legislation, the Affordable Care Act.

That wasn't very popular with Republicans, but would Justice Roberts have ruled differently if he had to be reappointed?

And there's no guarantee justices will listen to partisan persuasion.

Associate Justice Ruth Bader Ginsburg, for example, was beloved by Democrats, who also not-so-quietly hoped that she would retire during the Obama years.

They feared she might pass away under a Republican administration, and that's exactly what happened.

She died just two months before Joe Biden was elected president.

Enough time for President Trump to nominate Amy Coney Barrett to the Supreme Court, and she was swiftly confirmed by the Republican-led Senate.

That's not to say nominations of Supreme Court justices are never a partisan affair.

Far from it.

Just contrast the rushed appointment of Barrett with President Obama's nomination of Merrick Garland, which the same Republican-led Senate blocked, saying it was too close to the election.

Again, everything is political, especially politics.

And as lifespans increase, so do the duration of lifetime appointments.

Until the 1950s, the average tenure of a Supreme Court justice was around 15 years.

In 1970, it skyrocketed to 26 years, and according to a Presidential Commission, several recent appointees could serve more than 35 years, spanning as many as nine different presidential administrations.

Today, support for term limits is surprisingly bipartisan, with around two-thirds of Americans in favor.

Some suggest a mandatory retirement age.

But what happens if your party's favorite justice is nearing that age, and the other party holds the White House?

So what's the decision?

Did the Founding Fathers get it right?

Do lifelong appointments actually protect judges from partisan pressures?

We'll explore these questions and more in the center ring.

♪ Joining me now in the center ring is Executive Editor at SCOTUSblog.com, Zachary Shemtob.

Welcome, Zachary.

SHEMTOB: Glad to be here.

KATKO: Thanks so much for coming on this show, and it's a fascinating subject that seems to be catching fire lately.

But let's go back to the beginning with the Founding Fathers.

What were they thinking with respect to lifetime appointments for the Supreme Court?

SHEMTOB: So, as we know, the Founding Fathers were all over the place on different issues, but on this, it was pretty clear that they supported lifetime tenure to make the court as nonpartisan and nonpolitical as possible.

We know this from Alexander Hamilton in Federalist Paper No 78, where he wrote that this would lead to greater impartiality among the justices or judges in general.

The idea was that if someone served a life term, as opposed to having to worry about being reappointed or elected, they were less likely to be biased towards political parties or factions.

Therefore, they would be more of an independent actor than if they had to be reappointed or elected.

KATKO: So let's follow this string before we run a couple of other questions.

Do you have any examples over the years where Supreme Court justices appointed by one party really disappointed the party that appointed them?

SHEMTOB: Oh, there are plenty of examples.

I mean, most recently is David Souter.

Souter was appointed by George Bush and ultimately ended up being quite moderate to liberal later on in his tenure and was a huge disappointment among conservatives.

There was lots of calls after that for "no more Souters."

Another example was Justice Blackmun, appointed by President Nixon.

Blackmun went on to write and be a huge part of Roe v. Wade and was considered, ultimately, a huge disappointment.

He also became virulently against the death penalty, which became another cause of his.

And so you had, you know, a lot of disagreements there as well and party factions breaking down.

KATKO: Well, it sounds like the idea of judicial independence works, then, with the lifetime appointments to that extent.

But I want to go back to the actual composition of the court.

It has nine justices now.

Was it always nine justices?

SHEMTOB: It was not always nine justices.

Actually, the Judiciary Act of 1789 set six justices.

To rewind, the Constitution itself does not say how many justices there should be.

It does not put any limits on that either way.

And so that was established through statute.

The first statute was the Judiciary Act of 1789, and this appointed six justices.

The idea was at the time the Supreme Court justices did something called "riding circuit, which meant they appeared on the different circuit courts.

They literally had to travel around the country to do that.

And at the time, you had three circuit courts, so you had them appearing on two.

So you had six justices for the different circuit courts.

So it was based on that, which is very different than today.

KATKO: So that obviously changed to nine at some point.

What happened with changing it to nine?

SHEMTOB: So, a lot of things happened.

It was changed a number of times.

Proposals were between five and ten justices, and it changed periodically to a variety of different numbers.

Eventually, it hit nine, I believe, in 1869 or thereabouts, and has stayed nine since.

Because what would happen is a political party would come in, they would want justices on their side.

They would increase the amount of justices on the court.

Those justices would then be appointed and the next political party would come in and cut down on and then do the same.

And you had retaliation back and forth.

So eventually this came to an end in 1869, and basically there has been a détente since then.

KATKO: Well, the détente hasn't been unbroken, though.

Isn't it fair to say that President Roosevelt, during the New Deal legislation he was trying to get passed and upheld by the Supreme Court, tried to pack the court in the '30s?

SHEMTOB: He did.

He tried to pack it up to 15 justices.

KATKO: And what was the idea behind that for him?

SHEMTOB: Well, the idea behind that was he said that "nine old men" were blocking his New Deal legislation.

Now to be fair, most justices were not that old at the time so this was exaggerated to begin with.

But he claimed that he was not able to get passed what he wanted to get passed as long as the justices sat on the court, and therefore, put forward the idea of appointing up to 15 of them, obviously putting in six justices who would be loyal to him and pass New Deal reform.

The court behind the scenes, Charles Evans Hughes was chief justice at the time, and an ally of FDR, even though he lumped him in with the "nine old men."

And Justice Louis Brandeis, opposed these measures as did a lot of Congress, and they were able to put the kibosh on them.

It was a rare political loss for Roosevelt.

KATKO: He got beat up pretty good with that one, if I recall.

SHEMTOB: He did, he did indeed.

KATKO: So we still have nine justices.

But it's fair to say that in the last several presidential administrations, it seems like something's happened, there's been a shift politically in the Supreme Court.

Could you point to what's causing this shift and what your take is?

SHEMTOB: Yeah, so I think it's really complicated.

I would say the Supreme Court has always been political in that you've had justices deciding based on certain political considerations they have.

And this goes on to the very beginning of the court.

The idea of the court as apolitical is actually of relatively recent vintage.

You know, early on, justices decided based on certain things which we would find actually highly inappropriate today.

There is a difference between that and partisanship, Partisanship is the idea that justices decide based on the president or political party which appoints them.

So in the past, you saw more shifting, for better or worse, among justices who, as we talked about before, like Souter, Blackmun, Justice Kennedy and O'Connor would not necessarily decide based on what their parties had necessarily expected.

Again, we go back and forth forever about whether or not this is a good thing or bad thing, et cetera.

But I would say more of this idea of partisanship on the court than there ever was before.

And I think this is inflated as well because social media and the constant 24/7 monitoring of the court and turning everything political.

So the general politicalization of society itself which again, I think is a result of media and social media also hit the court.

So now everything they do is put under a microscope and deemed through a partisan lens, which regardless of how they decided was not the case even 10 or 15 years ago.

KATKO: So, because of all what you just laid out, there's been some proposals out there, one of which is term limits of some sort for Supreme Court justices.

What have you heard about that?

SHEMTOB: I mean, what's funny about that is the term limits debate has been raging since the beginning of the court.

If you go back to every era of the Supreme Court, different folks have proposed term limits.

I believe Thomas Jefferson was one of the first people to propose term limits.

He initially believed in lifetime tenure and a number of decisions that went against his agenda, and when he became President, he was suddenly opposed to life tenure and supported term limits.

In the 1830s and 1840s, you had were big debates on term limits.

The idea of this judicial oligarchy and term limits needing to be put in place.

So we've seen it again and again.

The latest iteration is to impose term limits.

The proposal is usually 18-year terms.

So each president would get to appoint two justices.

KATKO: So when you say 18-year term, that's the reason, so every President can have a shot at appointments?

SHEMTOB: Exactly.

It's to kind of make it as bipartisan as possible.

It would be based on, if, of course, a president from certain parties were elected over and over again, they would get to appoint more justices.

But the idea is ultimately to allow the flexibility of each president to put in place, for their term, two justices.

So that's what 18 years works out to.

There's a bigger question about what to do if that was put in place with the justices now.

Some say they should slowly be replaced.

Others would say, no, they should be allowed to serve until they retire or pass away.

So there's an additional question there, and the scholars go back and forth.

KATKO: Zachary, it seems like a lot of times, the Supreme Court votes along party lines, that is, the party that appointed them is the one they vote with.

Now it's a 6-3 Republican-Democrat composition.

Has that always been the case that they generally voted along party lines, or are there exceptions as well?

SHEMTOB: I mean, there are certainly exceptions.

In terms of voting along party lines, prior to the Roberts Court, you had a lot of 5-4 voting when it was a 5-4 court.

That's complicated a little by Stevens who was appointed by a Republican President but voted more liberally.

But if you count Stevens as one of the liberals, then the court was certainly in many ways very partisan -- or the idea it was partisan.

I think that one of the big differences if not the big difference is that you had swing votes.

So you had justices who were appointed by one party, but could either go either way to the quote unquote liberal or conservative outcomes.

That was Justice Kennedy, Justice O'Connor, and now you don't have a swing justice in that sense.

But I don't think we should forget that one of the most "partisan" decisions of all time occurred in Bush vs Gore in 2000.

So we have forgotten to a great extent how partisan that decision was, and when compared to today, in some ways, it may even be more so.

KATKO: Zach Shemtob, thanks so much.

It's been a great discussion.

Now, let's continue the discussion as we take to the trapeze.

♪ KATKO: Swinging in to talk about their thoughts on lifetime appointments and judicial independence, we're joined by retired professor at Vanderbilt University, Susanna Sherry, and Editor-in-Chief at the Cato Institute's Supreme Court Review, Tom Berry.

Tom, let's start with you.

A recent poll has shown that about 46% of Americans have faith that the Supreme Court operates in the best interests of the American people.

That number is way down from 68% in 2019, where it's been throughout history.

So do you agree that there is an issue here at some point, Tom, with people's view of the Supreme Court?

What do you think is driving that?

BERRY: That's actually a tricky question, because of course, the Supreme Court and the judiciary were designed to be the nonpolitical branch.

So to some extent, we insulate them from elections for the purpose of allowing them to make unpopular decisions - decisions that might not be what the majority would vote for because they're supposed to rule based on the law, not based on policy.

Nonetheless, even if they are making unpopular decisions, it is still not great for democracy if people don't have faith in the judiciary as a whole.

And I actually think some of the gamesmanship and randomness that's occurred because of lifetime appointments, things like not confirming a successor to Scalia until Trump was elected, things like quickly confirming Amy Coney Barrett at the end of Trump's terms, I think some of those are contributed to the notion that the Supreme Court is become politicized, or at least the appointment process has.

KATKO: Ms.

Sherry, what do you think?

SHERRY: I think I agree that it has become politicized and that some of the gamesmanship is why the court is losing popularity or is losing respect.

But I think it's also the behavior of the justices themselves.

Many justices have become politicalized.

An ideology and a desire for particular results.

And they are open, publicly about what those results are.

They've become celebrities who speak to their fan base, and then that leaks into their opinions, and people think that they are just legislators in robes.

KATKO: That's on both sides of the aisle, I take it, right?

SHERRY: On both sides of the aisle.

KATKO: Let's stick with you for a second, Ms.

Sherry.

There's been a lot of proposals for a term limit of sorts-not a renewal or anything, but just a limit of 18 years.

And the idea is that it gives every president a chance to appoint a few people.

What do you think about the term limit issue?

SHERRY: Well, I don't think that it would solve the current problems of politicization.

It might even make it worse because presidents might use their opportunity to appoint the most extreme justices that they could find.

The justices might make the most extreme decisions that they could.

But it would create a new problem, which is what justices are going to do after they retire.

They're probably going to want to work for a law firm, a university, or a think tank.

And how are they going to vote in the last few years?

Is their vote going to be influenced by what they want to do later?

I think that's a problem.

KATKO: So that's a great point.

I hadn't really thought about that; that is, would they skew their vote because, hey, they're only 70 years old, they've got to retire because their 18 years are up, and maybe they want to go make some money.

Interesting.

Mr.

Berry, what do you think?

BERRY: Well, one thing to point out is that if we went to 18-year terms rather than life, I think the age at appointment would change.

Right now, presidents are heavily incentivized to appoint younger and younger justices.

Clarence Thomas was appointed in his early 40s.

Most now are appointed under 55 so that they can serve as long as possible, given life tenure.

If we went to 18-year terms, Presidents wouldn't feel pressure to anymore.

It doesn't matter if they are 55, 60, even 65 they are likely to survive for 18 more years.

I think a beneficial aspect of that would mean you might see more 60-year-olds appointed and they are really at the age of retirement by the time they get to 18 years.

If you look at the whole history of the Supreme Court from its start to about the 1970s, 18 years was just about the average time that they voluntarily chose to be on the bench before retiring.

So I don't think it's an unreasonable amount of time to expect them to serve.

KATKO: Interesting.

That's a good argument the other way.

Now, going forward, is there any way to kind of take the politics out of this process at all, Mr.

Berry, and maybe do some things that might make it less of a political and partisan-based appointment process?

BERRY: Well, I think to one extent, you would lower the temperature of every single nomination if you had 18-year term limits because then you would have regular guaranteed appointments every two years.

So you have less of a notion of the fate of the republic of the balance of the court hinges on one single nomination the way we thought about it with the Kavanaugh and Barrett nominations.

So you would know, even if one party gets two in this election, the other party can win the next election and get two going the other way.

So I would prefer having a court where each individual nomination is a real debate about judicial philosophy, but no single one is likely to tip the court for a generation.

KATKO: Professor Sherry, your thoughts?

SHERRY: I think that's wrong.

If you look at it historically, there was a study that showed that since 1937, if 18-year term limits had been in place, 60% of the nominations would have changed the ideological composition of the court.

Going forward, almost three quarters of the nominations likely would occur when the senate and President were held by different parties.

I think it would mean that the Supreme Court would be an issue in every election, rather than just in some elections.

KATKO: So would it be constitutional to have the 18-year term limit, Professor?

SHERRY: No, I think it would take a constitutional amendment to change that.

KATKO: Mr.

Berry?

BERRY: A constitutional amendment is certainly the safest way to do it.

There is a proposal looking only prospectively - so to be clear, not cutting short the terms of any justices already appointed - but changing the rules prospectively so you serve 18 years on the Supreme Court and then life on a federal appellate court.

There is at least an argument that that would conform to the Constitution's requirement that judges serve for good behavior, meaning on the judiciary for life.

KATKO: Professor, what do you think about that?

SHERRY: I don't think it would work because justices are confirmed as Supreme Court justices.

They are not confirmed as a federal judge, so I think that they would have to stay on the Supreme Court.

KATKO: So what about the proposal for changing, which I've heard from some folks, about changing the number of votes needed in the Senate to up to two-thirds to get an appointment through to the Supreme Court.

What do you think about that, Professor?

SHERRY: I think that would help.

I think that would help because it would require compromise between senators of both parties and the President, and I think we would end up with less extremist justices, more centrist justices.

KATKO: Mr.

Berry, your take?

BERRY: I'd be concerned that not only would justices be centrist, but they wouldn't really have a coherent judicial philosophy.

Right now, we have interesting debates on the court.

We have justices admitting that they're originalists at the time that they're nominated or admitting that they're pluralists or non-originalists.

I'd rather have a mix of Kavanaughs, Gorsuches, Barretts, and Kagans than nine justices who refuse to sort of admit to any specific judicial philosophy in order to get confirmed.

KATKO: Well, isn't that the case sometimes anyway?

They say they don't have a judicial philosophy, Professor?

SHERRY: Sometimes they say that, but I think it's important to note that there's a difference between judicial philosophy- and I agree with Tom that it is a good thing to have people with different judicial philosophies on the court - but there's a difference between that and ideology.

Ideology is about results, and the court - many of the justices on both sides of the aisle - are now more about results than they are about methodology.

KATKO: Mr.

Berry, you have the last take here.

What's your thoughts?

18-year term limit - a good thing or a bad thing?

BERRY: I think it's a good thing.

49 out of 50 states have term or age limits for their state Supreme Courts.

Rhode Island is the only one that does it like the federal system.

So I think that's an indication that the federal system is an outlier.

It certainly made sense in the 1780s, but with longer lifespans, it's just sort of becoming anachronistic at this point.

KATKO: All right, well, thank you both for a very robust discussion, and I think our viewers got a good education from both of you.

Thank you very much.

SHERRY: Thank you.

BERRY: Thank you.

KATKO: Now it's time for my take.

♪ ♪ Here's my take: The Founding Fathers got it right.

Trying to insulate the Supreme Court from political influence as much as possible was a great idea, and that's why they had lifetime appointments.

I think if you reduce that lifetime appointment to an 18-year term, you still can achieve that goal.

Is there a risk?

Yes, of course.

People could be thinking about their next job after the Supreme Court while they are justices.

That's a risk.

That risk is outweighed by two things: Number one is, the President of almost every election will be able to appoint a justice or two to the Supreme Court.

That's a good thing.

That will keep the balance going forward.

And secondly, they might have more mature and more experienced justices taking the bench on the Supreme Court because you wouldn't have to worry about appointing someone that's young so they can sit on the court for 40 years.

So in the end, I think the 18-year term is a good thing.

That's my take.

Let's give it a whirl.

That's all for this week, folks.

To send in your comments for the show, visit wcny.org/BalancingAct For "Balancing Act" extras and exclusives, follow us on social media.

Thank you for joining us.

And remember, in the circus that is politics, there's always a Balancing Act.

I'm John Katko.

We'll see you next time, America.

♪ ♪ ♪