We Need to Talk About Term Limits

In part two of our Hot Supreme Court Reform September series, Kate and the Brennan Center’s Alicia Bannon make the case for term limits for the Court. The idea has bipartisan support, but what would they look like in practice? And, crucially, does Congress have the power to impose them? Take the Strict Scrutiny survey https://crooked.com/strictsurvey. New Strict merch available here https://store.crooked.com/products/were-gonna-need-a-bigger-court-graphic-t-shirt. You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cle http://crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://crookedcon.com/Buy Melissa’s book,The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Buy Leah’s book, Lawless https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t, now out in paperback Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.socialFor a transcript of an episode of Strict Scrutiny please email [email protected]

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Leah Litman?

  Strict Scrutiny is brought to you by Americans United for Separation of Church and State. It's back to school season, and this year, 5 million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court, and they need you to amplify their voices before the Supreme Court gets its hands on this case. And we all know what the Fifth Circuit did. Obviously, they let Texas get away with all of this.

• 0:40Speaker 01

  They're going to go up, but we're going to fight to get them taken down.

• 0:45Leah Litman?

  That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian, and their kids are in Texas public schools. The story they tell in this video is moving, and we hope everyone hears and shares it. Look, there is a human cost of Christian nationalist policies, like these Ten Commandments laws and the decisions the Supreme Court hands down. Every child deserves access to public education, where they aren't subject to state-imposed religion, or religious instruction, or coercion. Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion. Visit au.org/10c to learn more about this case and how you can help join the fight

• 1:29Leah Litman?

  to protect church-state separation. We talked a little bit about this case on our regular episode last week, but there's so much more to be said and to learn about the people who are fighting back.

• 1:41Speaker 02

  Coca-Cola. For the big, for the small, the short, and the tall. Peacemakers, risk-takers. For the optimists, pessimists. For long-distance love. For introverts and extroverts. The thinkers and the doers. For old friends and new. Coca-Cola. For everyone. Pick up some Coca-Cola at a store near you.

• 2:12Speaker 03

  Mr. Chief Justice, may I please report? It's an old joke, but when a hargoned man argues against two beautiful ladies like this, they're going to have the last word.

• 2:24Speaker 04

  She spoke not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

• 2:54Kate Shaw?

  Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Kate Shaw, your lone host for this edition of our special bonus series, Hot Supreme Court Reform September. And for this installment of our series, I am happy to be joined by returning guest Alicia Bannon, a senior director at the Brennan Center for Justice, where she leads the center's judiciary program and its Kohlberg Center on the US Supreme Court. Alicia, welcome back to Strict Scrutiny.

• 3:21Leah Litman?

  Thank you so much for having me.

• 3:22Kate Shaw?

  So, we're really happy to have you, and as I just said, we are doing a series about Supreme Court reform. People, I think, have a sense that something has gone deeply wrong with this Supreme Court. There was a Gallup poll in late July that had Supreme Court approval at 33%, at or near all-time historic lows. So it is not just us who have the distinct impression that something is badly amiss. And we think it's important for conversations about the Supreme Court right now to focus on specific reforms to the Supreme Court. We will definitely continue on this show and in other venues to criticize the court in both general and specific terms.

• 4:06Kate Shaw?

  But in addition, we wanted to bring listeners and viewers a series of episodes that were really laser-focused on specific potential reforms to the court, and our topic for today is term limits. Alicia, this is something that you've been thinking and writing about for quite some time, and I'm excited to get into it with you. But before we drill down on term limits, I want to take a step back and ask you to talk kind of generally about how you would characterize what is so wrong with the Supreme Court.

• 4:34Leah Litman?

  Well, thank you so much for having me and for starting this conversation. I think it's a really important conversation to have. I think in a fundamental way, the Supreme Court is failing in the role it is supposed to be playing in our democratic system. It has been gutting the role of Congress. We saw that this term in the Calais decision, where it eviscerated the Voting Rights Act, in the Slaughter case, where it eviscerated independent agencies. The Court's also been aggrandizing its own role, so we see that in its conduct on the shadow docket, where it has both kind of vertically, when you look at its relationship with the lower courts, and then when you look at its relationship with the executive

• 5:15Leah Litman?

  branch, it's both been behaving in a way that's unprecedented and frankly inconsistent, if you look at how it has engaged with the Trump administration as compared to previous administrations. And we're just seeing more broadly a lack of respect for the traditional constraints, things like precedent that are supposed to keep the court in its lane. And so I think across a whole bunch of arenas, we just see a court that's not playing the function that we need it to play in our democracy.

• 5:44Kate Shaw?

  I think that's all exactly right, and I do think that what I find kind of hopeful about this moment is that I think that that diagnosis is beginning to be more broadly, I don't know if broadly enough, but more broadly accepted. And so then I think the question is, are we stuck with the Supreme Court that we have, which is fundamentally disempowering other important institutions in government, and, as you said, asserting this enormous power for itself in ways that really throttle the functioning of democracy? Like, are we stuck with it, or are there things that can be done? And I think the answer is emphatically, we are not stuck with this court. There is a lot that can be done. Some of it through just the ordinary process of legislation.

• 6:27Kate Shaw?

  Some of it will raise questions about sort of constitutional soundness, and some of it will not. And so I think that different kinds of reform proposals raise different kinds of questions. So I think there is value, both in talking broadly about the Supreme Court and the need to fix what is broken, but also, I think, value, as I said earlier, in talking specifically about individual proposals. And so now let's turn to the individual proposal that you and your colleagues at the Brennan Center have spent quite a bit of time talking about and thinking about, and that is term limits for Supreme Court justices. So back in July, you and a couple of colleagues put together a 40-page memo titled "Constitutional Analysis of Proposals for Statutory Supreme Court Term Limits."

• 7:10Kate Shaw?

  Now, that is, I will say, a fairly academic-sounding title. I am a law professor. I read things with titles like that all the time. But it sounds academic, but I do think that you guys decided it was important to make clear what the objections to the ability of Congress to impose term limits look like, and what the answers to those objections are, and how making justices term-limited actually does square with constitutional design if you do it right. So I do want to get into the constitutional weeds a little bit, but before that, can you talk a little bit about why, in light of the problems that we have been talking about, term limits for Supreme Court justices are something that we should, or maybe even

• 7:54Kate Shaw?

  that we need to pursue? So can you just give us the top-line overview of the case for term limits?

• 7:59Leah Litman?

  Absolutely. I think, and I think term limits, at least as we think about it at the Brennan Center, is an important starting point for the conversation about court reform. It's really popular. Many polls, over three-quarters of Americans support term limits for Supreme Court justices, including a bipartisan majority. So I think one of the things that's really appealing about term limits is that it is a common-sense solution. I think there's a basic principle that no one should have that much public power for life, that that leads to a lack of accountability, a lack of connection with ordinary life and ordinary people. That's just not good for the functioning of our democracy.

• 8:42Leah Litman?

  And if you think of, at the starting point, a justice starting, we're looking at this stage of people who may be on the bench for 40 years, generational power. And so I think one component of term limits, and one reason why I think it's so popular, is that just basic notion of accountability. Another dimension of term limits, and I'll step back, let me just explain the proposal in a little more detail. Typically, how term limits proposals work is that you have an 18-year term for justices. After that phase, the justices continue to be judges, they continue to hold their offices, but they move to a senior status, where they're not hearing at least most of the cases that the court is hearing.

• 9:26Leah Litman?

  At the same time, you introduce a regularized appointment process. So once the system gets going, you end up with a process where every two years, the president will get a new appointment to the bench. And so in a four-year term, every president will get two and only two seats to fill. Regularizing the appointment process in that way is, I think, another big benefit of term limits, because one of the problems that we're seeing today with the court is that we have a supermajority that is completely unconnected to our public values. If you look at how elections- Have gone over time. Right now, we should be seeing a court that is much closer as a roughly, you know, kind of 50 50 divide. If you look at who's won our presidential elections over

• 10:09Leah Litman?

  the past several years, and instead, we have this super majority. And so another benefit of term limits is it more closely ties the court to our democracy, to democratic values, and lets it change over time as new presidents take power.

• 10:24Kate Shaw?

  Right. So, a combination of strategic retirements and just the luck of the draw has meant that Republican presidents have been way overrepresented in the appointments that they have made in the last really half century. So, for example, Barack Obama, two-term president, served for eight years, made two appointments in those eight, I should say, had two justices confirmed in those eight years, did in fact make a third appointment of Merrick Garland, who was never given a hearing and of course, not confirmed. But so there are two justices appointed by President Obama, Justice Oto-Moior and Justice Kagan. By contrast, in just his first term, President Trump was able to make three appointments to the court. And so, those, you know, reflect enormously different influence on the trajectory

• 11:08Kate Shaw?

  of our law, even though Obama, at the point that Trump finished his first term, had served twice as long. And so, there's lots of other kind of unevenness and asymmetry that has tilted in favor of more appointments by and more confirmations of Republican appointees to the court. But that's sort of a contingent fact of recent decades. But the larger point you're making, I think, Alicia, is that it is just fundamentally undemocratic for people, for justices to serve for decades and to reflect the political will of a previous generation or two, as opposed to of the present generation. And that's not to say that justices should serve for a year and turn over immediately, but this 18-year proposal kind of strikes

• 11:48Kate Shaw?

  a balance between kind of justices reflecting and channeling through the appointment process, the present popular will, but also a degree of stability and not excessive turnover on the court. So that, I think, is the sort of overarching philosophy of the proposal. Now, say a little bit more, if you would, about kind of how it would work.

• 12:06Leah Litman?

  Absolutely. And I think just to add to that, one of the big advantages of a proposal like term limits is that it promotes a democratic accountability. It kind of addresses that legitimacy deficit that we're talking about, but in a way that still protects judicial independence. So you're not targeting judges and saying, well, we don't like you, we're going to boot you off the bench. It's a regularized process that applies equally to all justices, but allows it to be more closely tied to the democratic process in a way that still respects the court's role. And so, basically, as I was saying, if you have a nine-person court in 18-year terms, over time, you can end up with this regularized process. With respect

• 12:45Leah Litman?

  to how those terms work, the proposals vary, but typically, you have a dynamic where judges, for the first 18 years, it will look essentially as it looks today. So justices will sit on the court, hear cases, decide what cases to take up, et cetera. And then, after that point, the justices transition to a senior status. So again, they still hold their office, they're not getting kicked off the bench, but their role is changing. And so, depending on the proposal, in some instances, the proposals say that those justices will hear cases on the lower court. They may continue to hear cases under the court's original jurisdiction. So those instances where the court is hearing cases as a trial court. They may step in

• 13:28Leah Litman?

  when other justices need to recuse themselves. They may provide other sorts of administrative support to the court. So they're playing a role, but it's a different role. And I think one of the things that's really interesting that a lot of people don't know is that we actually already have a senior judge system that does apply even to Supreme Court justices. And that's been in effect for about 100 years. We've had a senior judge system. And so, the difference between that system and what we would have now is that, the biggest difference is that instead of it being up to the judges to decide, okay, we're going to take this senior status, instead, you have a regular schedule that's set by Congress that says, at this phase, your role is going to change and you will take on this new senior role in the court.

• 14:14Leah Litman?

  This episode of Strict Scrutiny is brought to you by Alloy Health. Dealing with menopause alone, it's not just you. Almost 50% of women wait three or more years before seeking relief from menopause symptoms. Don't normalize women's suffering. That's years of hot flashes, awful sleep, brain fog, and mood swings. Some don't know where to start. Some ask their doctor and got dismissed. Menopause happens. The suffering doesn't have to. There are the symptoms: the hot flashes, sleepless nights, brain fog that makes you feel like a stranger in your own head, fatigue that no amount of caffeine can handle. There is the frustration, going to your doctor and being told it's normal, waiting two weeks for an appointment only to feel rushed and ignored. There is the confusion, decades of fear mongering and mixed messages about hormone therapy.

• 14:54Leah Litman?

  True story. Several doctors have tried to chalk up various symptoms I've had to something that I would loosely describe as nervous women syndrome. They don't call it that, but that's a clear intimation suggesting like, oh, sometimes anxious women experience physical manifestations of anxiety. And it's like, isn't medicine supposed to address those physical symptoms? Any interest in doing that instead of telling me to cope with them? Alloy was built by women who dealt with all of this. It's an all-in-one platform that connects you with board-certified menopause-specialized physicians and proven effective treatments. Care can start in hours, not weeks. 95% of Alloy HRT customers feel symptom relief within

• 15:39Leah Litman?

  the first two weeks. Treatment comes in the format that works for you: patch, pill, spray, or gel, personalized to your symptoms, your history, and your routine. Here's how it works. You complete your intake. Alloy solutions are available by prescription, so you'll start with a quick online form. Then you'll get your prescription. You'll be matched with a menopause-specialized physician who reviews your intake and creates a personalized treatment plan tailored to your needs. Plus, unlimited messaging with your doctor is always included. Then, HRT is delivered to your door. Once approved, your prescription ships straight to you. No pharmacy, no hassle. Join the 95% of women who tried Alloy and saw relief in the first two weeks. Head to myalloy.com and use the code STRICT. Your menopause-specialized doctor will tailor your treatment to your exact needs. Plus, you get unlimited messaging

• 16:24Leah Litman?

  with your doctor. Head to myalloy.com and use code STRICT to get $20 off. Strict Scrutiny is brought to you by Lawyering Without Law. What happens when authoritarianism doesn't abandon the law but uses it to undermine the democratic values and institutions? Lawyering Without Law, a podcast from the Knight First Amendment Institute at Columbia University, takes on this urgent question. Hosted by Katie Glenn Bass and Marav Kozla, the six-part series explores the role lawyers play in either defending democracy or facilitating the slide into authoritarianism. Episodes feature leading experts, including Kim Lane Shepley, on how authoritarian leaders exploit legal systems to consolidate power, Lawrence

• 17:05Leah Litman?

  Blasey, on the threat institutional corruption poses to American democracy, and Deborah Pearlstein, on how the decades-long erosion of professional norms have fueled the democratic backsliding we're witnessing today. While sobering, the conversations also find hope in the lawyers who refuse to bend and the institutions that have held the line. And they offer surprising and ambitious proposals for how the legal profession and American democracy might find their way back. Listen to all six episodes of Lawyering Without Law wherever you get your podcasts. This episode is presented by Planned Parenthood Federation of America. If you listen to this show, you already know. This administration, Congress, and the courts have spent the past few years making it harder to get health care in this country. And it's patients who are

• 17:47Leah Litman?

  paying the price. Take the Supreme Court. It paved the way for states to exclude Planned Parenthood Health Centers from state Medicaid programs in Medina versus Planned Parenthood. This undoubtedly violates patients' right to get care from quality providers that they choose. And last year, the Trump administration and Congress defunded Planned Parenthood, trying to shut down Planned Parenthood and block patients with low incomes from birth control, cancer screenings, STI testing, and more. That's why Planned Parenthood is fighting back. But fights like these take resources and supporters like you. No matter the size, your donation makes a real difference, helping Planned Parenthood meet this moment and protect patients' access to care when and where it matters most. If you believe all people should get health care, no matter their income, donate now at PlannedParenthood.org/defend.

• 18:35Kate Shaw?

  A couple of other logistical questions, and then I want to turn to the constitutional arguments. First, so if, once this is phased in completely, say, every president in like the first and third year of a single term gets to make an appointment, do these proposals account for the possibility of a Senate refusal to confirm? And sort of what does happen if the Senate doesn't confirm? Doesn't that give the Senate the ability to just kind of thwart the way this scheme is supposed to work?

• 19:00Leah Litman?

  So there's certainly still room for Senate gamesmanship, right? The Senate plays a role in our confirmation process. They have to confirm justices in order to take the bench. But I do think that this reform can be done in a way that reduces the likelihood of that kind of Obstruction for a few reasons. First off, I think there's some just concrete steps you could take to improve the confirmation process, creating a fast track process that at least requires the Senate to actually do an up or down vote on these nominees. So what we saw, for example, in the Merrick Garland context was that they didn't even give him a hearing. They didn't even have to take a vote. So they were able to kind of avoid that accountability. So I think one thing you can do is you can set in place

• 19:42Leah Litman?

  systems that would require the Senate to actually consider these nominees and vote on them. I also think you could potentially structure it in a way where the process would happen in the first two years of the president's term so that you would have an intervening election where, again, there could be another opportunity, if you're seeing that kind of obstruction, for voters to voice objections and push for confirmation. I think that the last thing I'll say, and one of the the real advantages of term limits, is that it does also lower the stakes of this whole process because you're not looking at justices who are going to hold their offices, at least, or hold their current positions, have their full powers for 40 years.

• 20:25Leah Litman?

  And you're not having a dynamic where because of strategic retirements, this may be your only bite at the apple to to transform the court. And so I also think part of what we think could happen with term limits is there's somewhat of an opportunity to reset the process and turn the temperature down a little bit. And shifting those incentives can help lead to a more functional confirmation process.

• 20:46Kate Shaw?

  Got it. Okay, so now to the constitutional case. So unlike something like the size of the Supreme Court, which is clearly for Congress to decide, and Congress has historically changed the size of the court, although it's been set at nine for 150 years. But clearly, Congress by statute can create a 13-member, 15-member, 17-member court. I don't think there's any serious constitutional argument against that. By contrast, changing the nature of Supreme Court service by, as you're describing, limiting the amount of time that justices have their full powers as active justices would be something genuinely new. Congress has not done that before with respect to the Supreme Court. So what are the constitutional arguments against the viability of a proposal along

• 21:32Kate Shaw?

  the lines of the one you're describing? And then I want to get to the responses to those objections.

• 21:36Leah Litman?

  Sure. I think the primary objection, the primary question that comes up around Supreme Court term limits is, is it consistent with the Constitution? Article three of the Constitution says that judges, including justices, hold their offices for good behavior. That's the language it uses, offices, good behavior. And so the question is essentially, is a term limits proposal like this consistent with Article three of the Constitution? And I'll say, when I first started looking into these issues, I was like, I don't know if this, is this possible? And I had to really dig in, read, read case law, read the history, and really read, look. What persuaded me was really appreciating the, both, if you look at Article three of the Constitution, there's not that much in there.

• 22:21Leah Litman?

  It really leaves almost everything in terms of the structure and design of the Supreme Court and the judiciary branch in general to Congress. And if you look over time at how Congress has exercised those powers, really, a lot of the components of a of a term limits proposal have actually been exercised by Congress over time. And so I think when you, when you put that together and when you recognize that, I think that the design of the Constitution, particularly Article three, was done in a way, very, very clearly, I think, to let Congress figure out the best way to design this system, to to design a court that can play the role that it needs, needs to play in our system and recognize that those needs may change over time.

• 23:04Leah Litman?

  I think there's a very strong argument that that this is within Congress's power.

• 23:08Kate Shaw?

  Well, and will you say more about that? So what, even if Congress hasn't done exactly this, what you're describing, what has Congress done? I like this notion that basically we have been under this mistaken impression that this kind of good behavior language in the Constitution has this totemic significance. And the thing it has to mean is service for life. Justices have to decide when to retire absolutely or serve until they die. And like, that's the nature of the Constitution's design. And really, that's, I think, putting way too much weight on those two words, good behavior, but also underappreciating how active Congress has been in regulating, generally speaking, around the Supreme Court. So what are some examples of things Congress has done that you think supply persuasive

• 23:50Kate Shaw?

  authority for the constitutionality of a proposal like this one?

• 23:54Leah Litman?

  One clear example is our whole system of senior judges. And the US Supreme Court has considered the constitutionality of our senior judge system. So the way it works is that now judges, both at the Supreme Court level and at the lower court level, can choose to take a senior status where they have reduced duties. But, and the Supreme Court recognized this, they still hold their office. So if you look again at the actual text of the Constitution, they are, senior judges are continuing to hold their office during good behavior. And so what a Supreme Court term limits proposal does is essentially a version of that senior judge system that we already have in effect. Now, the difference, of course, is that the justices aren't choosing when to take

• 24:39Leah Litman?

  that senior status. But that's not actually the text of the Constitution. It doesn't say you get to hold office during good behavior and have the office defined to be whatever you want, you know, whatever the justice wants it to be. The question is, are you holding your office or are you not holding your office? And we've long recognized that senior judges and senior justices do continue to hold their office. And I think that is all that is required for compliance with with that provision of the of the Constitution. And I'll say, that isn't just something that's been, you know, written in a statute, put on a shelf, and nobody's actually used it in process, practice. Just many, many justices have actually taken that senior status and have been hearing cases on lower courts, thousands of cases on lower courts.

• 25:24Leah Litman?

  If they weren't actually holding an office in that senior status, that would have been illegal. There would have had no basis to be hearing those cases as judges. So I think you can actually see a long history of practice and and that whole design of the senior judge system that sets up the components of what a term limits proposal would be. The other component I would lift up is just the long history of circuit riding, which we had in the first part of our nation's history, where Supreme Court justices were required to ride circuit, so spent a large portion of their time hearing cases on the lower courts. And again, there was a, this one up to Supreme Court, is it, can you, can you require justices to hear lower court cases if that was, if they're justices, not lower court judges?

• 26:08Leah Litman?

  And the court said, yes, that we have had this long tradition up till now, and that that is within Congress's power to do. And I'll note, the justices hated doing it, but that was still, that was still in Congress's domain, not the justices' domain, to determine the scope of their duties.

• 26:23Kate Shaw?

  So those are, I think, very persuasive examples. And I do think that in a sane world, this history of legislation, Supreme Court acquiescence in, and affirmative blessing of these modes of regulation of the the courts and the Supreme Court would essentially resolve the question of the constitutionality of an 18-year term limit proposal. And yet, I do think that there would be a serious danger of this profoundly imperial court striking this sort of term limits legislation down because it would feel like an existential threat to their authority. And as we have seen, this is not a court that is going to lightly part with authority, right? It's doing the opposite.

• 27:06Kate Shaw?

  So I guess, how do you think about that possibility? And maybe that's a good segue into something that you, I think, referenced earlier, which is, this maybe cannot be a standalone reform, or maybe is not optimal as a standalone reform. I guess, how do you think about term limits as something that could be or should be pursued in tandem with court expansion, right? Like, there is certainly an argument that this Supreme Court cannot be trusted to fairly read the constitutionality, to fairly assess the constitutionality of a proposal like this. And so you need to do court expansion in conjunction with term limits. The two could be done together so that you have a Supreme Court that actually might

• 27:48Kate Shaw?

  provide a fair constitutional reading of a proposal like this, as opposed to leaving it to this Supreme Court, the pathologies of which we have just described. So sort of, I guess, what do you think about both of those questions?

• 28:04Leah Litman?

  There's a lot to unpack there. I guess, one thing I wanted to just say first is just one other component of the constitutional argument that I think is compelling, is there are several of these proposals that particularly relate to the Supreme Court's appellate jurisdiction. So Article three of the Constitution provides that there's a limited number of cases where the court has original jurisdiction, where it hears cases as a trial court, and all the rest they hear as an appellate court. And the the Constitution says that those, the court's appellate jurisdiction is subject to the regulation of Congress, exceptions and regulations as Congress defines them. And so that is, I think, just another textual basis. And again, Congress has used extensively over time its power to regulate the court's jurisdiction.

• 28:49Leah Litman?

  So just wanted to add that as another way of thinking about the constitutional basis.

• 28:55Kate Shaw?

  But Alicia, don't you remember Sam Alito insisting that there's not one word in the Constitution that gives Congress the power to regulate the Supreme Court? Not one. This is one of these Wall Street Journal, like, interviews, I think. Anyway, so Sam Alito at least disagrees.

• 29:09Leah Litman?

  Sam Alito and I have, have a lot, a lot we don't agree on these days. I guess, so your bigger question, I think, is, is obviously a really important one. What would this court do with it? I think, I want to push back a little bit at just the assumption that this, that this is, you know, maybe not a fight worth having, or that this is a foregone conclusion. We have a lot of former judges, law professors, who have made, I think, very powerful, forceful arguments that this is within Congress's power. I think the world that we would live in, where you have a wildly popular reform like this, that passes Congress and that is very explicitly about constraining the court in

• 29:53Leah Litman?

  a way that is respecting judicial independence in this way, I actually think will be, will be hard, it will put the court in a hard position. And so, and and I think it's a fight worth having. I think it's important to to put the court in that position. I also think you could, there are ways that the reform could potentially be structured with severability provisions that might, for example, like, you could imagine different ways of structuring it that could have additional provisions take effect, potentially even some sort of expansionary provisions take effect if term limits are struck down. So I think there's a lot of ways you could think about how to structure that statute that would make it hard for the court to to say no, especially given the broad bipartisan support that people have for what really is such a common sense.

• 30:37Leah Litman?

  Reform. And so I think the first thing I'll say is that I think there is a much stronger constitutional argument, even for this court, than a lot of people might think on first instance. But obviously, if the if the court were to strike it down, I think that would very much change our whole conversation about court reform in a lot of ways. I think it could potentially jumpstart conversations about constitutional amendments. I also think it would jumpstart other conversations about what other sorts of reforms should be on the table. I think, again, one of the things that I think is so compelling about term limits in particular, is that it is so popular. This is a reform that that everybody wants. Like, 75% of people don't even agree about, like, doggies and rainbows, right? Like, to

• 31:22Leah Litman?

  have something that has that level of support, I think, is a really powerful, grounding, starting point for organizing people around this idea that the Supreme Court, it's not, you know, some marble castle in the sky. It's a government institution, just like any other branch of government. And it is wholly appropriate for us to be talking about how it should be structured, and if it's performing the job it needs to be performing.

• 31:46Kate Shaw?

  Yes, totally. Couple of things. One, I definitely wasn't suggesting it's not a fight worth having. I think it's absolutely a fight worth having. And I do think that constitutional arguments, and I sort of agree with you that I, years ago, when I sort of came to think really seriously about Supreme Court reform, was more skeptical about term limits by statute. Now, you've always been able to amend the Constitution to impose term limits, but the question is whether you can do it by just statute. And I have totally come around. And I think that proposals along the lines of the ones that we are discussing are squarely constitutional, and the arguments against them, while not frivolous, are weak. And so I wasn't suggesting otherwise. I just don't trust the Supreme Court to, you know, accept even obviously winning constitutional arguments, especially if they have skin in

• 32:29Kate Shaw?

  the game institutionally. And so I think that it is important just to game out what does happen if they decide to do something pretty lawless and strike down these term limits, even though squarely constitutional, even though with wide bipartisan support, and that could pass Congress. And so, and I think that those answers are really compelling. And just to maybe unpack, you said something about you could get creative in terms of how you design this, and maybe have a, some severability and an expansionary sort of default or something. And I think that what you're referencing there is some kind of design that says, well, we're going to add justices every other year, in the first two years of a presidential term, regardless. If you, Supreme Court, decide to strike down the term limits part of it, well, then the court will just keep growing. So then, that's,

• 33:12Kate Shaw?

  you know, we'll have the new additions every, you know, two, every four years, however we distribute them. And if the limits, if you decide the limits don't fly, then you're just going to have a lot of new colleagues that you're going to have to figure out how to play in the sandbox with. So that would be, I think, one possibility. But I also do think that you're right about the galvanizing effect that striking down something like this would have, in that it would potentially spur even more serious and even radical reforms to the Supreme Court, potentially including constitutional amendment. And so I think that all of those are reasons to try, even if there is, of course, some chance you have to be clear eyed about, that this Supreme Court might do everything in its power to resist those kinds of changes to the court as an institution. When you said it took

• 33:56Kate Shaw?

  you, you know, some time to kind of think through and come around on these proposals, and I said I have had something of a similar journey, I actually do think that for people who think of themselves as institutionalists, and I would count myself as one, I'm not sure if you think of yourself that way, Alicia, but my assumption is that you do at least somewhat. But either way, I guess I think that at this point, Supreme Court reform should be able to bring together people who want to defend our institutions, and those who think they are fundamentally broken and maybe want to tear them down. Like, I actually do think this is an issue that should unite institutionalists and anti-institutionalists. Which is to say, like, if you detest this Supreme Court, you know, you might not need

• 34:38Kate Shaw?

  convincing that the court needs reforming, but we should figure out the specifics. But I actually think also, if you are a fan of the Supreme Court, and think it has an important role to play in our democracy, you should also support Supreme Court reform. Because, as you said at the outset, Alicia, it is not functioning as intended in our democracy right now. And reform is the way to restore it to that proper role. And so I do think we are at this moment where this is not just something that should be a preference of or pursued by just people who are critics of our institutions. I think defenders of our institutions should also be on board with Supreme Court reform. Okay, so, end rant, but I'll give you maybe the kind of last word, either on that, or anything on the topic, the topics that we've been canvassing today.

• 35:20Leah Litman?

  Well, I think you have it exactly right. And I'll go back to something you mentioned at the outset, which is that public confidence in this, in the court has plummeted. I think this should be something that is deeply concerning to anybody who cares about the court as as an institution. And I think, stepping back, why should we think about Supreme Court reform? I think it is something that goes to the fact that we actually do need a functioning Supreme Court in our democracy. We need an institution that's going to protect rights, that will be a bulwark against assault on our democratic system. It's important to have a court that's playing that role. And so I think the question is, how can we make structural changes that will get us to the court that we need for our democracy? And

• 36:05Leah Litman?

  again, I think Supreme Court term limits is a transformative reform that gets at key dysfunctions in the role that the court is currently playing in our system. And it is something that can really galvanize the public, because I think, again, everybody understands that it's not, it's not good in a democratic system for anybody to be holding that much power for life. And so that's one of the reasons why we've been really drawn at the Brennan Center, and why my co-authors, Steve Spalding and Elzar Chacha, and I wrote this, this paper, really digging into the legal issues around Supreme Court term limits.

• 36:40Kate Shaw?

  All right. Well, I think we will leave it there. Alicia Bannon of the Brennan Center, always great to talk to you. Thank you so much for joining me today.

• 36:46Leah Litman?

  Thank you so much for having me.

• 36:53Kate Shaw?

  Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rauel and Michael Goldsmith. Music by Eddie Cooper. Our team includes Matt DeGroot, Ben Heathcote, Johanna Case, Kenny Moffett, Adam Lippert, and Eric Schut. Our production staff is proudly unionized with the Writers Guild of America, EST.

• 37:22Kate Shaw?

  Sprained wrist, ankle twist, broken thumb can't make a fist, busted knee, surgery, that patch of ice you didn't see.

• 37:29Speaker 06

  Where pain starts, Gernavix Zuzetragene begins. Gernavix is a non-opioid 50-milligram prescription tablet for adults with moderate to severe acute pain that reduces pain signals before they reach the brain.

• 37:40Kate Shaw?

  Tendon tear, nose repair, tripping on that broken stair, dislocation, operation, moped crash while on vacation.

• 37:49Speaker 06

  Do not take Gernavix with CYP3A inhibitors. Avoid use with grapefruit or liver problems, as these may increase side effects. Tell your doctor about all your medicines if you are pregnant or breastfeeding. Gernavix may make certain medicines and birth control less effective. Side effects include itching, muscle spasms, rash, and elevated muscle enzymes.

• 38:06Kate Shaw?

  Joint displacement, knee replacement, fell on marbles in the basement, ladder slip, broken hip, that rock climb where you lost your grip.

• 38:15Speaker 06

  To learn more about Gernavix, ask your doctor, call 1-833-589-PAIN, or visit Gernavix.com.