Should U.S. Supreme Court Justices Have Term Limits?

There is bipartisan support for Supreme Court Justices having term limits instead of lifetime appointments. Is this an idea whose time has come? Following is some background, opposing views, and this blog’s opinion...

Background

The U.S. Constitution states that federal judges “shall hold their offices during good behavior.” The phrase “good behavior” implies that there is no limit on how long a Justice may serve. This implication is supported by the impeachment provision of the Constitution which applies to federal judges as well as the President and Vice President. Alexander Hamilton, in the Federalist No. 78, noted that the judges’ appointment for life was “the best expedient which can be devised in any government to secure a steady, upright and impartial administration of the laws.” There has never been a serious attempt to curb the Justices’ term of service.[1]

There have been many instances, however, when Justices have held on to their seats despite failing health, for political purposes. The late Justice Ruth Bader Ginsburg, who fought late stage cancer but didn’t resign, hoping to outlast President Trump, is the most recent example. In the 1990s, it was widely rumored that Chief Justice Rehnquist would have retired but for President Clinton’s winning and holding the Presidency.[2] Similarly, Justices William Brennan and Thurgood Marshall hoped to outlast a string of Republican Presidents. University of Virginia professor Larry Sabato wrote, “The Court’s brethren have on occasion protected members who became senile, incompetent, or too ill to serve.”[3]

In September 2020, House Democrats proposed the Supreme Court Term Limits and Regular Appointments Act, seeking a staggered, 18-year term for new Justices. The bill requires the President to appoint a Justice every two years, forcing into retirement the longest serving Justice, in case the Court ends up with more than nine judges. “No president should be able to shift the ideology of our highest judicial body by mere chance,” said the bill’s lead sponsor, Representative Ro Khanna.[4]

In April 2021 President Biden appointed a commission to study proposed Supreme Court reforms, including “the length of service and turnover of Justices on the Court.”

Below is the ongoing debate about limiting Justices’ time in office. Articles for and against are presented in the order of their appearance in the media, followed by this blogger’s opinion.

Current Debate

“Supreme Court Justices Shouldn’t Get Lifetime Appointments. It’s time to Impose Term Limits.” (By Wallace B. Jefferson, Chief Justice of the Texas Supreme Court 2004-2013, and Ruth V. McGregor, Chief Justice of the Arizona Supreme Court 2005-2009; July 15, 2021; nbcnews.com)[5]

Justices Jefferson and McGregor wrote, “Forty-nine states don’t allow tenured lifetime judgeships, including those in which we both served, and it’s time for the U.S. Supreme Court to follow suit.”

“Lifetime tenure is not essential to judicial independence or democratic governance. The Justices’ salaries are protected while they are in office and impeachment sets an exceedingly high bar for their removal. And the U.S. is an outlier among major democracies in giving its constitutional court judges power for life. It certainly isn’t the norm in the 49 states that impose a limit on the length of judicial service — often through a mandatory retirement age or set terms of office. These limits on tenure have not led to an outpouring of concern about the courts’ independence.

“Given the outsize role of the Supreme Court in our system of governance, we propose limiting justices to a nonrenewable term of 18 years as a step toward balancing the competing interests of experience on the bench against the perverse incentives for administrations to appoint increasingly partisan Justices, since this would lower the stakes for each appointment.”

“Supreme Court Term Limits Could Backfire on Democrats” (By Ramesh Ponnuru, columnist; June 21, 2021; Bloomberg.com)[6]

“Caps that apply only to new Justices would frustrate the partisan ambitions behind the effort,” wrote Ponnuru.

“The idea may seem more promising than increasing the number of Justices. But “the more sense a proposal makes as a long-term improvement in the structure of the federal government, the less it addresses progressives’ current unhappiness.”

“What’s to stop a future Republican government from passing a new law letting additional vacancies be filled with old-fashioned, life-tenured justiceships?”

“Biden’s Commission is Examining Supreme Court Term Limits. Those Could Have Unintended Consequences.” (By Adam Chilton, Daniel Epps, Kyle Rozema and Maya Sen; The Washington Post; April 1, 2021)[7]

“Term limits appear popular with the public. Their appeal also cuts across partisan lines, and both liberals and conservatives have endorsed them,” wrote Chilton et. al., but “Congress — and the states — won’t easily support the idea.”

The authors, professors at leading universities, simulated how five different term limit proposals would have shaped the Court if they had been in place during the last 80 years. Their key finding was that “all the major term limits proposals would have reduced the levels of extreme partisan imbalance.”

They wrote: “Our analysis highlights the consequences of the different proposals for term limits, but they don’t make the political challenges any easier. Any term limit proposal would face difficult political and legal hurdles before it could actually become law. Statutory proposals face serious constitutional objections. The constitutional amendment proposals, by contrast, effectively require bipartisan consensus, as constitutional amendments have to be ratified by a supermajority of states.

“It’s hard to see how Republicans and Democrats could agree. Republicans would likely object to imposing term limits on sitting justices, given their present supermajority. Democrats would be disadvantaged if term limits only apply to new appointments going forward.”

“Dozens of Legal Experts Throw Weight Behind Supreme Court Term Limit Bill” (By John Kruzel; thehill.com; October 23, 2020)[8]

The Hill reported: “More than two dozen constitutional law experts on Friday voiced support for a bill that would establish 18-year term limits for Supreme Court Justices, adding scholarly backing to one of several court reform proposals that have gained traction in recent weeks.”

“In a letter released Friday, 30 scholars threw their support behind a term-limit bill that was introduced last month by Democratic Reps. Ro Khanna of California, Don Beyer of Virginia and Joe Kennedy III of Massachusetts.”

Click here for the letter cited above: https://scotustermlimits.org/profs-letter/

“Term Limits Won’t Fix the Court But They Could Help Restore Confidence in the Confirmation Process and Eliminate Public Concerns about Aging Justices.” (By Ilya Shapiro; The Atlantic; September 22, 2020) [9]

Ilya Shapiro, a Cato Institute scholar and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court, wrote, “The hope… is that by more regularly replacing longtime Justices with newer ones, adding predictability to when those switches occur, the judicial-nomination process would become less divisive and disruptive. This is largely right —term limits could help restore confidence in the confirmation process and eliminate the morbid health watches we now have as Justices age — but there are other problems they wouldn’t fix.

“There are real risks, and ways in which instituting staggered term limits could spectacularly backfire. … In every cycle of divided government, [it] would exacerbate, not lessen, the politicization of the confirmation process.

“Term limits wouldn’t change the ideological composition of the Court over time. Nor, for that matter, would they address the fundamental power that each Justice wields, which is the reason we see such ferocious political battles every time a vacancy occurs.

“Even if term limits wouldn’t change the Court’s decision making, they might be worth trying anyway, because at least there would be less randomness about when vacancies arise.

“The best argument for term limits is that they would make the Supreme Court more of a standard issue in Presidential and Senate campaigns and thus less of a political football when the winners of those elections get to nominate and confirm Justices.”

“Judicial Term Limits are the Best Way to Avoid All-out War over the Supreme Court” (By The Washington Post; September 21, 2020)[10]

The Post’s editorial board wrote: “To lower the stakes of any one Supreme Court pick, so the parties are not tempted to resort to all-out war every time a Justice retires or dies… the best way… is to impose term limits — of, say, 18 years.

“A smartly designed term-limit plan would remove the role of fortune in determining how many Justices a President gets to nominate. Justices’ terms could be designed to end in a staggered manner so that an equal number of openings come up in every Presidential term. Over time, more justices would have impact, preventing the idiosyncratic preferences of one or two individuals from determining U.S. jurisprudence for decades. This plan would also eliminate the incentive for presidents to pick young and relatively inexperienced judges merely because they are likely to live longer. And leaders from both parties could tell their voters that they have ensured that the other side will never again get a lifetime appointment.

“A party that more often won the Presidency still would have an advantage over time. That is good: Elections should matter. But they would matter in a predictable, rational way. The country would no longer be hostage to a system that favors the lucky — and the shameless.”

“The Need for Supreme Court Term Limits” (By Maggie Jo Buchanan, Center for American Progress; August 3, 2020)[11]

Maggie Buchanan, a director at the Center, wrote, “Longer terms have led to an increasingly political confirmation process and a Court more likely to be out of touch with the general public.

“Term limits have received support from those on both sides of the political aisle, but some concerns remain. There are two leading policy objections to term limits: first, that they would cause greater instability in jurisprudence and second, that they would create incentives for judges near the end of the term to audition for, or cater their decisions to, their next position. While these are indeed important considerations, neither objection outweighs the potential benefits of term limits.”

“How to Fix the Supreme Court” (By Ezra Klein; vox.com; June 27, 2018)[12]

Ezra Klein, a New York Times columnist and co-founder of Vox, wrote, “The core problem here is the stakes of Supreme Court nominations: They’re too damn high. Candidates serve for life — which, given modern life spans and youthful nominees, can now mean 40 years of decisions — and no one knows when the next seat will open.

“The result isn’t merely an undemocratic branch of government but a randomly undemocratic branch of government. And that randomness, and the stakes of seeing it play out in your side’s favor, makes it necessary to turn Supreme Court nominations into blood-sport. It creates incentives for Justices to stay on the bench long after the point at which they should’ve retired, in the hopes that they can outlast an ideologically unfriendly administration — Ruth Bader Ginsburg, for instance, is 85, but it’s hard to imagine she won’t do everything in her physical power to hang onto her seat until a Democrat can replace her. It biases Presidents toward nominating the youngest qualified jurist they can find, rather than the best jurist they can find.

“We need to de-escalate Supreme Court fights. The most obvious way to do that is to limit terms. Holding justices to a 10-year, nonrenewable term would lower the stakes of any individual Supreme Court nomination as well as make the timing of fights more predictable.”

This Blog’s Opinion

The Justices’ time in office should be limited by a high retirement age (say, 72 years) rather than term limits. This would retain the benefits of lifetime appointment—“steady, upright and impartial administration of the laws,” in the words of Alexander Hamilton. But it would limit the Justices’ timing their exit for political purposes and reduce the randomness of new appointments.

Limiting the Justices’ term to 18 or so years would hurt the Court’s stability, reduce its reserve of experience, and increase the chances of corruption. It would also worsen the Court’s ideological divide whenever the country has a string of Presidents from the same party. Presidents would appoint young, inexperienced judges, hoping to garner influence by giving them a shot of fame, and these youthful judges would be enticed by private or government jobs after ending their terms. These negative outcomes are confirmed by experience from nations where judges have term limits or retire early. For example, scholars have reported that India’s Supreme Court, where Justices have a retirement age of 65, has shown less independence, more corruption, and frequent flip-flops on issues of major significance.[13]

Imposing term limits of any kind would not reduce the partisanship in Justices’ appointments. That animosity is an outcome of the Constitution giving the power of appointment to people’s representatives, the President and the Senate. As long as the people are involved, the partisan battles will continue.

But a high retirement age would help fix the Court’s other problems. It will usher out judges with mental debility, loss of stamina or failing health. They would not be able to game the system for ideological reasons. This would recast the Court, making it less a keeper of the nation’s ideological balance and more an arbiter of law. And a fixed retirement age would make new appointments less random.

Almost all U.S. states appoint or elect their judges for limited terms. Thirty-two states and Washington D.C. have a mandatory retirement age, ranging from 65 to 75. In three states—Massachusetts, New Hampshire and Rhode Island—judges enjoy life tenure or service to a mandatory retirement age of 70. In New Jersey, judges serve an initial seven-year term, and if they are reappointed, they serve to age 70. In all other states, judges serve set terms and must be reselected to serve additional terms.[14]

–Bhanu Dhamija

Follow @bhanudhamija

[1] https://constitutioncenter.org/blog/constitution-check-did-the-founders-want-term-limits-for-supreme-court-just

[2] http://www.cnn.com/2004/LAW/12/10/lazarus.federal.judges/

[3] A More Perfect Constitution by Larry J. Sabato, page 109

[4] https://beyer.house.gov/news/documentsingle.aspx?DocumentID=4925

[5] https://www.nbcnews.com/think/opinion/supreme-court-justices-shouldn-t-get-lifetime-appointments-it-s-ncna1273882

[6] https://www.bloomberg.com/opinion/articles/2021-06-21/supreme-court-term-limits-might-box-in-democrats

[7] https://www.washingtonpost.com/politics/2021/04/01/bidens-commission-is-examining-supreme-court-term-limits-those-could-have-unintended-consequences/

[8] https://thehill.com/regulation/court-battles/522447-dozens-of-legal-experts-throw-weight-behind-supreme-court-term-limit

[9] https://www.theatlantic.com/ideas/archive/2020/09/term-limits-wont-fix-court/616402/

[10] https://www.washingtonpost.com/opinions/judicial-term-limits-are-the-best-way-to-avoid-all-out-war-over-the-supreme-court/2020/09/21/c85bf12a-fc22-11ea-b555-4d71a9254f4b_story.html