High court justices raise doubts about Arkansas term-limits law at hearing

November 30, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The fast-moving campaign to limit the terms of members of Congress appeared to stumble, at least temporarily, in the Supreme Court yesterday.

A 90-minute hearing, composed more of detailed legal conversation than of soaring rhetoric about history, revealed considerable skepticism among several justices over a claim by Arkansas that states have the power to bar long-time members of Congress permanently from the ballot.

The court took up one of the most fundamental constitutional questions it has ever faced: Do the states have power to decide who can run for Congress, or is that issue settled by the Constitution itself?

Justice David H. Souter was the first member of the court to raise doubts about Arkansas' term-limits measure.

He suggested that its permanent ban on long-term incumbents running for re-election could be upheld only if the court went well beyond past rulings on state power over election candidacies.

Justice Ruth Bader Ginsburg suggested that Arkansas had not simply put "a handicap" in front of incumbents who want to run again, but appeared actually to have "hobbled" them.

Justice Anthony M. Kennedy, who may hold a swing vote in the case, noted that the court had never allowed a state to put "a burden" on an individual -- such as restricting him from seeking office -- merely because that person had previously exercised a right -- running and winning in the past.

The newest justice, Stephen G. Breyer, wondered aloud why the court would feel free today to embrace term limits when some of the Founding Fathers -- James Madison and Alexander Hamilton, in particular -- had opposed them.

Only Justice Antonin Scalia provided a sustained and sometimes passionate defense of states' powers to restrict ballot entrants, although even he said the constitutional question of state power was a "very close" one in this case. He appeared to draw some support from Chief Justice William H. Rehnquist.

Although comments by justices at a public hearing do not commit them to vote one way or the other, the skepticism of what appeared to be a majority made it seem that term limits could survive the court's review only if there is a clear shift in sentiment as the justices deliberate. A decision is expected by late spring.

No matter how the court rules, term-limits advocates intend to try to force Congress to put forward a constitutional amendment to impose such limits nationwide. A vote on such an amendment has been promised in the next session of Congress, at least in the House. The Senate outlook is unclear. A constitutional amendment, which would require the approval of two-thirds of ++ each house of Congress and of 38 states, could not be overturned by the Supreme Court.

Arkansas' attorney general, J. Winston Bryant, defending term limits at yesterday's hearing, was interrupted repeatedly by justices who expressed doubt about his reasoning.

Justice Sandra Day O'Connor, usually a strong advocate of states' rights, appeared troubled that Arkansas had gone as far as it had to keep incumbents off the ballot in the future. She implied that she would be less concerned if a ballot-access law worked for a shorter period of time, not for life.

Justice O'Connor, however, at times joined in the sharp questioning of Mr. Bryant.

The court, during the Arkansas official's half-hour presentation, focused more on Congress' power to second-guess state ballot limits than on the scope of state power in the first instance. It was not clear how that discussion bore on the issue of state authority to set limits on congressional service.

The Clinton administration joined Arkansas foes of term limits in the case, with U.S. Solicitor General Drew S. Days III contending that the Supreme Court already had made it clear that the Constitution denies both Congress and the states any power to alter the specific qualifications for Congress that are spelled out in the Constitution.

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