By Michael Waldman\Brennan Center
Photos: YouTube Screenshots\Wikimedia Commons
Last week, Special Counsel Jack Smith submitted a 165-page brief to Judge Tanya Chutkan in the prosecution of Donald Trump for trying to overthrow the Constitution’s peaceful transfer of power.
The filing shows how outrageous it was for the Supreme Court to issue Trump v. U.S. just four months ago. That ruling conferred vast immunity on presidents who break the law, so long as they do so as part of “official” acts.
When the justices stalled the arguments and delayed the ruling until the last day of the term, then sent fuzzy instructions to the trial judge, they ensured that Trump would not face a criminal jury before the election. Voters were deprived of vital information too. This was a judicially executed cover-up.
As the Supreme Court term starts this week, the most important cases may well be those that have not yet even been added to the docket. The justices will likely rule on election cases. And they may hear appeals in the Trump prosecution, offering them a chance to compound the damage already done. All of which makes clear, yet again, why the Supreme Court itself needs reform.
According to Smith’s filing, Trump knew he had lost the election. His aides and his vice president told him so repeatedly. He reportedly told family members, “It doesn’t matter if you win or lose. You have to fight like hell.” His schemes to overturn the voters’ will were a direct and conscious effort to stay in the White House for another term.
Sen. Tom Cotton (R-AR) called the filing “a temper tantrum from a deranged fanatic.” (He meant Smith, by the way, not Trump.) That’s wrong. By stalling the case, Trump’s lawyers and the Supreme Court pushed these proceedings into the weeks before the election. Nothing in Justice Department rules or the criminal law stops a prosecutor from making a filing like this, as top Watergate prosecutor Phil Lacovara and others have explained. As for the complaint that this sworn testimony has not been subjected to the rigors of a trial, with the defendant able to rebut the damning evidence, well, yes — all the more reason for a speedy and public trial.
All of this underscores why term limits for the Supreme Court make sense. The Court wields vast power with minimal accountability. Its unelected justices, serving for life, can grow ever more distant from the country they help to govern. Justices easily become out of touch, captured by ideological special interest groups, or heedless of ethics rules.
Few reforms have as much bipartisan support. The most recent Fox News poll found that 78 percent of the public supports an 18-year term limit for justices, including strong majorities of Republicans and independents. Prominent conservatives, such as the cofounder of the Federalist Society Steven Calabresi and even Chief Justice John Roberts, have backed term limits in the past. Now that the idea has gained new momentum with endorsement by President Biden and Vice President Harris, critics have begun to assail it. They call it (wrongly) a power grab. They suggest it is risky.
A new analysis by the Brennan Center shows that, in fact, limited terms on supreme courts is the norm in the United States. Mike Milov-Cordoba shows that justices on every state supreme court but one either serve fixed terms or face a mandatory retirement age. Just 1 percent of state supreme court justices — the five from tiny Rhode Island — serve out lifetime appointments like their counterparts on the U.S. Supreme Court. These limits keep justices in touch with the people. In modern times, state supreme court justices have served on average for 13 years, just half of the ludicrous 26 years of service for the average U.S. Supreme Court justice.
Arguments for Supreme Court term limits and against presidential immunity flow from a common source: the need to ensure accountability for those in power. That is a core American value, deeply embedded in our constitutional system. It is, at its heart, a conservative value, not a radical one.
In 1783, a victorious General George Washington stepped away from power after leading the American Revolution. “If he does that,” said King George III, “he will be the greatest man in the world.” Later, after two terms as president, Washington again stepped away, setting a standard so sacrosanct that it was later enshrined in the Constitution by amendment. His actions helped write into the country’s operating code the idea that nobody should hold too much power for too long.
“Greatest man in the world”? We’d settle for a president who obeys the law — and a Supreme Court that upholds the Constitution.
