Justices Appear Closely Divided on Term Limits

The justices of the Supreme Court sounded closely split along liberal and conservative lines Tuesday during oral arguments over whether the states may impose term limits on their members of Congress.

The case before the court, which challenges term limits approved by Arkansas voters in 1992, is the most closely watched political dispute to reach the court in years. Hanging on the outcome are laws in 22 states. Among them is California, which would force veteran legislators off state ballots after serving six years in the House or 12 years in the Senate.

The issue also has clearly split the two political parties. Republicans have called for term limits as a way to shake up Congress and have pledged to vote on a constitutional amendment to impose them. The Democrats, who have controlled Congress until now, opposed the idea and have said that voters should have the right to reelect long-term incumbents.

In questions and comments from the bench Tuesday, the court’s conservative leaders, Chief Justice William H. Rehnquist and Justices Antonin Scalia and Sandra Day O’Connor, indicated that they would be likely to uphold term limits because the Constitution does not specifically forbid states to adopt them.

At the heart of the dispute are two provisions of the Constitution. One lays out a few basic “qualifications” for members of the House and Senate. The other says that states can set “the times, places and manner” of electing federal legislators.

“I’m inclined to credit the practice” of the past in which states adopted extra qualifications for federal offices, such as excluding felons from serving, Scalia said.

O’Connor noted that the high court in 1974 upheld a California law that barred losing candidates in the June primary from gaining a spot on the fall ballot as independents. If states can adopt that kind of law, she asked, why can they not adopt a term-limit law that prevents three-term House incumbents from appearing on the ballot?

She also suggested that a term limit “may not be a qualification at all” but rather a “time, place and manner” regulation governed by state law.

But the more liberal justices, John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer, indicated that they see term limits as an obvious “qualification” and scoffed at the notion that the Constitution allows states to add qualifications for members of Congress.

Could they require senators to be older than 50? Stevens asked. How about forcing them to retire at age 70? Ginsburg inquired.

Breyer pointed out that James Madison and Alexander Hamilton said in 1787 that the Constitution set only a few “fixed” qualifications for candidates for Congress so as to leave the door open for the voters to decide who would be elected.

“Why would we think now that the Constitution, particularly in light of what Madison and Hamilton said, was intended to allow other qualifications . . . such as birth or property or perhaps a requirement of previous service in the state legislature?” Breyer asked.

During the 90-minute argument, the justices addressed their questions to the attorneys at the lectern, but, as usual, they also clearly directed their comments at their colleagues on the bench.

Scalia quickly answered Breyer’s question.

The framers of the Constitution “weren’t worried about the states,” Scalia said. “The states were the people, in their view.” As Scalia saw it, Congress cannot add extra qualifications for its members, but the states can.

Given the apparent liberal-conservative split on the issue, the outcome probably depends on moderate justices Anthony M. Kennedy and David H. Souter. Both asked skeptical questions about the term-limits law, but Souter also wondered aloud whether Madison and Hamilton intended to prevent only “the national legislature” from changing the qualifications of its members.

Under the Arkansas constitutional amendment, those who had served maximum terms could seek reelection but only as write-in candidates. The Arkansas Supreme Court struck down the measure as a violation of the U.S. Constitution, and the state appealed to the U.S. Supreme Court.

The high court allotted 90 minutes Tuesday for the arguments in the case from four lawyers, including U.S. Solicitor General Drew S. Days, who branded term limits unconstitutional. The arguments, however, were disjointed and seemed poorly focused.

The Arkansas attorney general, J. Winston Bryant, bumbled through the first 30 minutes and managed to alienate even the justices who were inclined to support his state’s law.

At one point, O’Connor interrupted him: “Mr. Bryant, that is a very remarkable argument.” To the amazement of the justices, the Arkansas state attorney had argued that Congress and the states could add endless numbers of new qualifications for members of Congress.

Lawyers attacking term limits did not fare much better.

Louis Cohen, representing the League of Women Voters, left the court puzzled when he suddenly conceded that a term-limit law was not a new “qualification” for a member of Congress. Justice Kennedy noted that he had spent 30 pages of his legal brief arguing that a term limit was a qualification.

“This was the biggest case of the term, and you had four advocates tripping over themselves,” one attorney said afterward.

The justices will vote privately this week on the case (U.S. Term Limits vs. Thornton, 93-1456) and begin work on a written ruling, which may not emerge until July.

If the court upholds state term limits, the laws in 22 states will take full effect.