Philip Blumel: Will US Term Limits v. Thornton be revisited?
Philip Blumel: Hi, I’m Philip Blumel. Welcome to No Uncertain Terms, the official podcast of the Term Limits Movement for the week of October 5th, 2020.
Stacey Selleck: Your sanctuary from partisan politics.
Philip Blumel: With the death of Ruth Bader Ginsburg, the makeup of the Supreme Court no longer resembles the court of 1995, the divided court that produced a controversial split decision, US Term Limits v. Thornton. That decision voided voter-approved term limits on US Congress members in 23 states overnight. Might that decision be reviewed or even overturned? Let’s discuss this possibility with US Term Limits Executive Director, Nick Tomboulides. Hey, Nick.
Philip Blumel: Let me set the table for this discussion by reminding ourselves and our listeners a little bit about what US Term Limits v. Thornton was, alright. In the three election cycles of 1990, 1992 and 1994, 23 states term-limited their Federal Congress members. And most of these term limits, by the way, were for 6 or 8 years in the House and 12 years in the Senate, and the US term limits was at the center of this movement. It was a great strategy and damn it, it was working. But a case came out of Arkansas where a politician sued the voters over term limits, and this case made its way all the way to Supreme Court, and that’s US TL v. Horton.
Philip Blumel: The politicians argued that the qualifications to be a Congress member are specified in the Constitution and states can’t add any additional ones. And they also said that explicit power given to the states in Article II Section 4 of the Constitution to regulate the time, place and manner of elections does not give the power to state to impose term limits. So, in a sense, they were saying that the definition of the word manner should be really closely prescribed and that it really doesn’t mean much. The majority echoed these arguments and we lost. However, the Court’s changed and now with the loss of Ruth Bader Ginsburg, I don’t know, I think the decision’s been getting a little bit of increased scrutiny.
Nick Tomboulides: Hope springs eternal. It’s certainly been getting a lot of attention in the legal community. There’s been a new paper released by Supreme Court experts at Washington University in St. Louis and they have ruled that US Term Limits v. Thornton, if Amy Barrett is confirmed, would be one of the most at-risk precedence the Supreme Court has, most likely to be overturned. In fact, it was at the top of their list. And I think the reasoning behind that is you look at the case from 1995, you realize there are only two Justices from that case who are still on the Court. They’re Clarence Thomas and Stephen Breyer. Since then, seven appointments have been made, and of the new Justices, at least four of them are likely to rule with US Term Limits, with term limits, with the legality of states imposing term limits on their Members of Congress. I think you could get as high as six.
Philip Blumel: Maybe.
Nick Tomboulides: Because you would have Clarence Thomas, who was the original author of the dissent, he wrote in favor of term limits back in the day, you got Neil Gorsuch who also wrote in favor, then you got Alito, is also probably a reliable vote, Roberts, Barrett and Kavanaugh.
Philip Blumel: Yup. Well, as you know, Nick, US Term Limits pays a lot of attention to the Court, and particularly anything referring to this case, and yeah, our count would be, that if it were held today, that US Term Limits v. Thornton would be decided differently. There was a case this year which also gave us some reason to believe that. In the case Chiafalo v. Washington, where the Supreme Court unanimously said that the states could require electors in the Electoral College to vote with their pledged candidate, that they couldn’t exercise independence, because there was a handful of electors out in Washington State and other places that tried to vote for Colin Powell, even though they were pledged to Hillary Clinton. And this case went all the way to the Supreme Court. The Supreme Court said, “No, no, no. The state has the power to impose these qualifications on electors.” But where did they get that power, Nick?
Nick Tomboulides: They got that power from… Well, according to at least some of those Justices from Article II of the constitution, which says that each state shall appoint, in such a manner as the legislature may direct, a number of electors. A manner, focus on that word, [chuckle] because in this case, in this case, the Justices, including Ruth Bader Ginsburg, said that the word “manner” gives the states a broad ability and power to regulate their presidential electors, even going so far as to impose qualifications on their presidential elections. Example of a qualification, you must vote for Hillary Clinton or pay a fine. That’s a qualification.
Philip Blumel: No kidding. Well, wait a minute. Now, going back to US Term Limits v. Thornton now, didn’t they argue that the word “manner” should be very narrowly prescribed and that it didn’t include a whole lot of range of powers for the state to create ballot access-type laws? Now, we have “manner” being used very broadly by this modern Court in a unanimous decision. And the word “manner” back in the day, in US Term Limits v. Thornton, in a split decision, where they argued that that same word meant very little. It sounds like, to me, that it creates instability in these two decisions because they contradict each other in a pretty important way.
Philip Blumel: I know we’re sensitive about that at US Term Limits, but it’s not just us. Remember, those three academics from Washington University saw something here and we had Justice Thomas and Justice Gorsuch mention specifically US Term Limits v. Thornton about a dozen times. And so, this is being viewed by academics, by Justices on the Court, and by us at US Term Limits, that there is something getting more and more unstable. So there’s a lot of ideas out there where we have our eyes open, because if a case went back to the Supreme Court, we might win it this time.
Stacey Selleck: What does 87-year-old Senator Chuck Grassley do for his birthday? He makes important policy decisions while in his seventh term in the US Senate. Grassley’s been in Congress since 1985, that’s 35 years, but he’s been a professional politician since 1959. That’s 61 years of not being in the private sector, experiencing the life of a typical American. Charles Ernest Grassley was born September 17th, 1933 during the Great Depression. That was the year Prohibition ended, Einstein emigrated to the US amid the rise of the Nazis, construction began on the Golden Gate Bridge in San Francisco and King Kong premiered at Radio City Music Hall.
Stacey Selleck: Also that year, Shirley Temple signed her first contract at age 5. The song of the year was Captain & Tennille, Love Will Keep Us Together. That year, a stamp cost 10 cents, a loaf of bread 33 cents, and the median household income was $11,800. Grassley has leaned on a mere sliver of private sector experience over the past six plus decades of his life. Sixty-one years seems more like the reign of a king than a public servant, and indeed Senator Grassley has been called the Ethanol King for his consistent support of federal subsidies and mandates to protect the industry inspired by Senator Grassley. It’s no surprise then that Senator Grassley has received an F on US Term Limits’ legislator scorecard.
Stacey Selleck: He refuses to sign the term limits pledge or to co-sponsor the Congressional term limits amendment in Congress. Let’s honor his birthday by promising to do all that we can to pass the 28th Amendment to term-limit members of Congress.
Philip Blumel: Let’s turn now to another ramification of the passing of Ruth Bader Ginsburg, and this is the renewed effort to term-limit the Supreme Court, always something we’ve kept our eye on, not something that has been the center of US Term Limits’ mission. What do you think the likelihood of something like this occurring is?
Nick Tomboulides: I think it is… Probably at this point, it’s more likely to happen in the immediate future, like within the next six months to a year, than our congressional term limits, because there’s no clear and entrenched opposition standing in the way. You’ve got a lot of Republicans who are on record, elected officials, Democrats want this, and Democrats have a lot of sway with the media, which has a lot of sway with the public, and there are several Supreme Court Justices who have said they’d be fine with this. So I’m not seeing an immediate bedrock of opposition that will stand up and block something like this from happening.
Philip Blumel: Good point. And we’ve also seen some support for it from both the left and right as well. Right now, of course, we’re seeing the support from the Democrats, largely because they’re upset about President Trump getting three choices for the Supreme Court, which is unusual. But we’ve also seen in the past groups like Convention of States and other groups that are looking for Supreme Court term limits coming from the right. So, you’re right, there’s really not a really big opposition to it. I guess the main thing that would slow it down is just the difficulty of the process of achieving it. It might not require a constitutional amendment.
Nick Tomboulides: There’s debate on that. I personally, in my research, do not think that it requires a constitutional amendment if you do it the right way. Because Article III of the Constitution says that federal judges shall hold their offices during good behavior, and that has been construed to mean that you get life tenure, but it doesn’t necessarily mean you get life tenure on the Supreme Court, right? We’ve actually seen Supreme Court Justices, you’ve seen Sandra Day O’Connor, for example, when she retired from the Supreme Court, she rotated down to a District Court of Appeals.
Philip Blumel: Right, so did David Souter.
Nick Tomboulides: Yeah, so you could actually word this proposal in such a way that you’re not actually terminating the office or the employment of these Justices, ’cause you could really only do that if they were found guilty of bribery or treason. But you could keep them within the federal bench on a different level, and then every 18 years or so, you allow the new President to make an appointment. I think you could do that with a statute, you would not need a constitutional amendment, which makes it a lot lighter lift.
Philip Blumel: Right, especially like you said, with an impetus for it right now and not a great opposition to it. Yeah, I think that’s right. And I’d go a little bit further and say that it’s not a bad idea for very different reasons, incidentally, than congressional term limits, which we’re always looking for with congressional term limits, legislative term limits, we’re looking for competitive elections and better representation. Well, you’re not really looking for representation on the Supreme Court, in fact you… More important than representation is independence, so it’s almost the opposite. And that’s one reason why we’ve not really made it a center of our efforts at US Term Limits, but there are really good reasons why term limits work in this case as well.
Nick Tomboulides: And the idea of the life tenure was done for a completely different reason at the start of our country. The framers did it, because prior to the formation of the United States, monarchs would form these courts, these tribunals, and they would just kick a judge off if they didn’t like the decision. Like if the judge ruled against the king, the king would just kick the judge off and probably put him in a guillotine too in some cases. So that’s really how the life tenure for the Supreme Court was born, when our country was formed and people were living to 40, 50 years old on average, they had no idea that folks would be spending 30 to 50 years in one seat on the Supreme Court. And like you said, it’s being done for completely different reasons, these are not elected officials, these are appointed officials. When we say things about congressional term limits, like, “Hey, wouldn’t it be great to get some fresh ideas and perspectives?” We don’t want fresh ideas and perspectives on the Supreme Court, we want Justices who will follow the Constitution. The Court’s task is totally different from legislating. They’re interpreting the law, they’re not making it. Too often we see Supreme Court decisions that are essentially political activism.
Nick Tomboulides: I think the US Term Limits v. Thornton decision falls into that category, but I don’t think nine lawyers in black robes who are unelected should be making the law. I think that’s the legislature’s role, and term limits would go a long way to make the court less political.
Philip Blumel: This week’s corruption update comes from Illinois. Imagine that. Illinois state Senator Terry Link has become the third senator there to face federal charges over the past year as part of a sprawling corruption probe in the state of Illinois. The 23-year veteran representing the northern suburbs of Chicago was charged with felony income tax fraud. Senator Link was an opponent of term limits who pushed back against the rising calls for imposing this reform in Chicago, which is alone among the top 10 cities in America without term limits.
S?: Corruption, corruption, corruption rules their souls. Corruption, corruption, corruption chills our bones. Corruption…
Nick Tomboulides: I don’t think this was true with Ruth Bader Ginsburg. I think she was very, very sharp until the very end, but you get other Justices who have stayed on past their intellectual prime. I think Justice Stevens was in over 30 years, and by the time he retired he was in his early 90s. At what point is it time to step aside and let some new blood in there?
Philip Blumel: Right. With a term limit, that date is set, and it’s no disrespect to the Supreme Court Justice to ask them to step down because their term is over.
Nick Tomboulides: There’s a bill on this that has been filed in the US House, and unlike most members of Congress, I actually read the bill. It’s HR…
Philip Blumel: No way. Really?
Nick Tomboulides: Yeah, yeah. HR 84 24. Right now it’s the Supreme Court Term Limits and Regular Appointments Act of 2020, and it would be exactly what we were describing. It would be an 18-year term limit, after which point the Justices could rotate to a different part of the federal bench. And it would not apply to the current Justices, so if you love Clarence Thomas or Sotomayor, don’t worry, they’re not going anywhere.
Philip Blumel: Right. So this could be something that’s gonna come down the pike. Now, Ro Khanna, US Representative from California who authored this legislation, is, of course, a term limits hero, really, both on the Congressional front and now on the Supreme Court front. He recorded a video recently explaining his view of the matter. Let’s hear that right now.
Ro Khanna: Our founders could never have dreamed that a Justice would be making decisions in the Court 40 years, 50 years after they were appointed. The idea that the framers had was that someone, after a distinguished legal career, would serve on the Supreme Court for the final few years of their professional career and render their wisdom and counsel to the nation. That has been totally perverted, of going onto the Supreme Court has now become a game, with parties racing to appoint younger and younger individuals and having a view that those individuals should be making decisions that will bind future generations. That is why the stakes of these Supreme Court battles have become so large and why it has polarized and divided our nation. There’s a simple fix. We should have an 18-year term, that’s a long term, for Supreme Court Justices, and every president should get to appoint two Justices. Now, the Justices can still have tenure for life as the Constitution calls for it. After their time on the Supreme Court, they can go back on a circuit court or they can serve on a federal district court.
Ro Khanna: We need term limits. We need term limits for Congress, we need it for Senate, we already have it for the President, and we should have term limits for the Supreme Court. I’m honored to be working with Representative Kennedy and Representative Beyer on this. I hope we can get a vote in the House of Representatives on this bill, and I hope it will be bipartisan. All the Republicans are talking about term limits. Yes, if we need term limits for members of Congress and Senators, we should have term limits for Supreme Court Justices as well.
Philip Blumel: Well, he makes a good case.
Nick Tomboulides: It’s good to see members of Congress roaring with applause at the thought of term limiting another branch of government, but…
Philip Blumel: You noticed that, did you?
Nick Tomboulides: Congress, how do you feel about term limiting yourselves? What do you feel about term limits for Congress? Ken, play a cricket noise.
Philip Blumel: No kidding, but, keep in mind, and this is something that I find very encouraging and also why I just called Ro Khanna a hero, is because in this video where he’s talking about his call for Supreme Court term limits, he also makes the case for Congressional term limits at the same time. He understands this policy and how it can be helpful in various different ways, and we’ll be hearing a lot from him. He’s only been in office for how long?
Nick Tomboulides: I think four years.
Philip Blumel: So, Ro Khanna.
Nick Tomboulides: Look, yeah, I think life tenure for an elected official is a very disturbing idea, to me, at least. Life tenure for an unelected official is a very disturbing idea. Life tenure in general is bad public policy. We need term limits across the board.
Philip Blumel: Thanks for tuning in for another episode of No Uncertain Terms. The launching pad for a constitutional amendment is the Senate Judiciary Committee. Right now, they are sitting on SJR-1, the US term limits amendment. You’ll recall that our own Nick Tomboulides testified in favor of this bill to a judiciary subcommittee last year, but since then, nothing. Our action item this week is to contact judiciary chair Senator Lindsey Graham and urge him to hold a vote on SJR-1 in 2020. To do so, go to termlimits.com/graham. It’ll take you two minutes. Tell him no politician should be able to retain power for life. That’s termlimits.com/graham, GRAHAM. Thank you. We’ll be back next week.
Stacey Select: The revolution isn’t being televised. Fortunately, you have the No Uncertain Terms podcast.