Justices. Even if one focuses entirely on term limits, moreover, the group of Supreme Court practitioners cited in the introduction to this Chapter warns that “a statutory solution would be inherently unstable”; over the years, Congress might amend the system depending on whether Congress and the White House are in the same hands at the moment.[99] Opponents of term limits are especially critical of a statutory approach, arguing that if term limits may be changed by statute, then an angry Congress could punish the Court by reducing the term of office anytime it chose to do so. Critics of the statutory approach argue that it is precisely to avoid such risks that the Constitution does not permit Congress to impose term limits by statute. On this view, the degree of consensus required for a constitutional amendment provides important security against the composition of the Court being manipulated for partisan or ideological reasons.
For some members of the Commission, the existence of constitutional doubt, as well as the significance and complexity of adopting a system of term limits, are themselves reasons to pursue the reform through constitutional amendment. They worry that a statute altering the Court’s composition will generate greater uncertainty and mistrust than other constitutional questions. When litigants eventually challenge a term limits statute, the Court would have to decide on the constitutionality of a law that restructures the Court itself. There might also be strong disagreements about which Justices should participate in the decision. No matter which way the Court came out on the question, these Commissioners worry that the Court’s legitimacy, or perceptions of its legitimacy, would be undermined.
Members of the Commission who support a statutory solution believe these concerns are overblown. They do not believe that a term limits statute would be any more destabilizing than a host of other issues that the Court has confronted over the years. They also think that inaction carries its own risks, and that the appointments process now displays a degree of dysfunction that makes remedial action urgent. Given the powers that Congress and the President already have to regulate the Court, proponents believe that recognizing the power of Congress to regularize appointments would not add more risk than it is worth—and as a practical matter, if the reform were adopted with strong bipartisan support, the precedent established by the statute might not carry over to other situations.
At a minimum, the contestability of statutory approaches counsels in favor of serious deliberation by Congress if it chooses to consider this route. In these deliberations, we hope that Congress would keep in mind the central structural values of our Constitution, particularly the principle of judicial independence, and consider what future Congresses, armed with the same constitutional powers, might someday attempt. Indeed, in recent years, we have seen
