A new Supreme Court reform proposal by the group “Third Way,” similar to legislation introduced in Congress, is not what it seems. It poses an existential threat to the independence of the Supreme Court which protects our constitutional republic. The proposal has two basic ideas:
- Supreme Court justices who have served longer than 18 years can no longer vote on appellate cases, only on original jurisdiction cases.
- Each president can appoint two new justices for each term.
Deceptively packaged as term limits, the proposal does not actually limit the terms of Supreme Court justices. The proposal denies the right to vote of some long-serving justices on some cases, hoping to coerce these justices into “retirement.” It also grants each president the power to add two new justices to the court per term, regardless of whether existing justices “retire.”
The result is not term limits. It is court expansion.
Why court expansion could threaten judicial independence
This proposed plan is a transparent
attempt to manipulate the size and composition of the court to give nominees appointed by a party control of the court.
Though unlikely to be found constitutional, the plan would be a disaster for the independence of the court, our rule of law and our constitutional republic. We appreciate our Supreme Court as being independent. We do not want it to be a sycophant rubber stamp for one particular party.
If justices are disenfranchised who have served more than 18 years, why couldn’t an amendment to the bill decide that eight years is enough? Why couldn’t the bill be amended to provide that presidents could increase the court to four, six or eight justices per term to control the outcomes?
The possibilities are endless.
We want our Supreme Court to abide by the rule of law, be absolutely independent and decide whether some activity, regardless of party affiliation, abuses our Constitution.
Party loyalists can address most of these issues by winning elections and passing legislation. They do not need to expand, purge and undermine the independence of the Supreme Court to enact liberal and progressive legislation.
We have had nine justices for 157 years.
Will public confidence in the Supreme Court be destroyed if voters understand that the structure of the court has been manipulated by the majority party in Washington to bring it under their control? Will the court likely be manipulated again by the next majority?
We know the answers.
This proposal is more than a debate over term limits
The bottom line is that this bill is not a naked power grab like proposals to simply add four new justices to create a new court majority. It is worse. It is a misleadingly titled, concealed power grab that attempts to fool the American people. This bill uses a false label in an attempt to persuade Americans to give up the independent Supreme Court that protects every one of our constitutional rights.
Democrats, who fear authoritarians from the right, should join with Republicans, who fear authoritarians from the left. They should lock hands and support the “Keep Nine Amendment” by an overwhelming majority of two-thirds in both houses of Congress.
The Keep Nine Amendment offers another path
The Keep Nine constitutional amendment states: “The Supreme Court of the United States shall be composed of nine justices consisting of one chief justice and eight associate justices.” We have had nine justices on the U.S. Supreme Court since 1869.
The late Justice Ruth Bader Ginsburg was quoted about the Supreme Court and nine justices on the court. Justice Ginsburg, who opposed court packing, said that nine seemed like “a good number.”
In 2019, a bipartisan, nonpartisan group of former state attorneys general formed the Coalition to Preserve the Independence of the United States Supreme Court. The purpose: support the Keep Nine Amendment to have it passed by two-thirds majority in the U.S. House and Senate and then ratified by three-fourths of the states.
An amendment would ensure that neither party could manipulate the size of the court to gain control. It was first introduced in Congress in 2020 by Democratic Rep. Collin Peterson of Minnesota. It has been backed by resolutions passed in 20 state legislative chambers and more than 1,000 elected officials nationwide.
Voters favor keeping nine justices, polling shows
Recent polling by McLaughlin shows that voters would back the Keep Nine Amendment by a more than 3-1 margin. And voters who are undecided in the 2026 election would back it by almost a 6-1 margin.
The Keep Nine Amendment is the single most widely supported Supreme Court reform in America.
Paul G. Summers is a lawyer. He is a former appellate and senior judge, district attorney general and Tennessee attorney general. Raised in Fayette County, he lives in Nashville and Holladay.
This article originally appeared on Nashville Tennessean: Supreme Court term limits proposal is really court expansion | Opinion
