This is part 6 of the Saving the Court series. I would encourage you to read previous posts, including
- Saving the Court: Announcing the Project (Part 1)
- Saving the Court: How We Got Into This Mess (Part 2)
- Saving the Court: A History of Supreme Court Reform Efforts (Part 3)
- Saving the Court: The Nomination and Confirmation Process (Part 4)
- Saving the Court: Expanding the Number of Justices (Part 5)
In September 2020, Rep. Ro Khanna (D-CA) introduced a bill in the House of Representatives that would limit the term of Supreme Court Justices to eighteen years. Following their eighteen-year term, Justices could retire, or, if they’d prefer, serve on a lower federal court. The bill, which was co-sponsored by Rep. Don Beyer (D-VA) and Rep. Joseph Kennedy III (D-MA), would also set up an appointment process that would allow the President to appoint a Justice to the Court each odd-numbered year, guaranteeing each President a minimum of two Supreme Court appointments per term.*
“We can’t face a national crisis every time a vacancy occurs on the Supreme Court,” said Rep. Khanna. “No justice should feel the weight of an entire country on their shoulders. No President should be able to shift the ideology of our highest judicial body by mere chance. Most importantly, our country’s top constitutional questions shouldn’t be decided by a panel of jurists who are biding their time until a President of their choice is elected. It’s time to standardize and democratize the Supreme Court.”
Representative Khanna further justified his proposed reform to the Supreme Court by pointing out that in the past nearly five decades, Republican Presidents have appointed far more Supreme Court Justices than Democrats, despite Democratic Presidents spending nearly as much time in the White House as Republicans. For instance, in the past forty-eight years, Republicans have served as President for twenty-five years and have appointed sixteen Justices. By contrast, Democrats have served in the Presidency for twenty-three years, but have only appointed five Justices.
Arguments in Favor of Term Limits and Uniform Appointment Procedures
Proponents of term limits for Supreme Court Justices point to the fact that Justices today serve longer and longer terms on the Court. Since 1970, Justices have served an average of 26.1 years. From the inception of the Court in 1798 until 1970, the average tenure was just 14.9 years.
There are four primary reasons the tenure of Supreme Court Justices has increased so dramatically in the past half century. First, rising life expectancy allows Justices to remain on the Court longer. Second, party sorting incentives encourage Justices to remain on the Court until a President of their preferred party is elected and can replace them with a Justice who shares their judicial philosophy. Third, the job of Supreme Court Justice has become cushier in recent years. Unlike in the early days of the Court, Justices no longer ride circuit. Instead, they serve on one court, aided by four or five law clerks. Finally, the number of cases decided by the Court has dropped in recent years—due in part to the Court’s use of certiorari, which gives it more flexibility in what cases to hear—meaning there is less work to do.
Another factor in the increase in Justice tenure is what political scientists Justin Crowe and Christopher F. Karpowitz refer to as “the decline of the short-term justice.” What Crowe and Karpowitz found is that forty Supreme Court Justices have served for ten years or fewer, but none of those Justices have served during the past fifty years. Increased life expectancy is not the only reason for this phenomenon. In the past, Justices left for a variety of reasons, including to seek political office, serve in a different role within a Presidential administration, or leave the Court due to controversy or disgrace, as well as due to poor health or death.
Proponents of term limits believe that the constitutional rule that grants life tenure to Supreme Court Justices is fundamentally flawed. Justices today remain on the Court for ever increasing numbers of years and further into their senior years than at any time in previous history.
According to Steven Calabresi, Northwestern University Law School professor, “This trend has led to significantly less frequent vacancies on the Court, which reduces the efficacy of the democratic check that the appointment process provides on the Court’s membership. The increase in the longevity of Justices’ tenure means that life tenure now guarantees a much longer tenure on the Court than was the case in 1789 or over most of our constitutional history.”
In addition, between the less frequent vacancies and the longer tenure of Justices, when seats on the Court do become open, confirmation battles become much more intense because there is so much at stake. Every confirmation hearing becomes a battle in the ongoing partisan quest to control the Court.
Any government that allows justices on its highest court to exercise great power, virtually unchecked, for three or four decades at a time, is by its very nature undemocratic. Life tenure may have made sense in the eighteenth century, but it no longer does. It is a relic of a bygone era. And it is particularly inappropriate today, considering how much more powerful the Supreme Court has become since the days more than two centuries ago when the Court was first created.
In other words, allowing Supreme Court Justices to serve ever longer tenure is anti-democratic. Not only does the Court need new members more frequently to keep it current both legally and societally, but new appointments also act as a democratic check on the Court’s membership.
A key component of any proposal to implement term limits on Supreme Court Justices is the procedure by which Presidents will be given a minimum of two Court appointments per term in office; the idea being that as each staggered 18-year term expires, the President serving at the time will be allowed to replace them. If a Supreme Court Justice whose term is not expiring chooses to retire early or dies while serving, the President in office at the time of the retirement or death will be allowed to replace the Justice without impacting their two guaranteed appointments.
As stated in Part 4 of this series, the current confirmation process for Supreme Court Justices is broken. Among its many other flaws, it is haphazard in nature. While one President might appoint two or three Justices, another might not appoint any. This can result in a Court that is skewed toward one political philosophy. At the moment, the Court is skewed toward conservatives, but could just as easily swing in the other direction in the future.
Proponents of term limits and automatic appointments during odd-numbered years say that this reform will lower the temperature during confirmation hearings. Both sides will understand that the 18-year term is much more manageable (much better than the 25+-year terms we are seeing now), and it will encourage Presidents to appoint older, more experienced candidates to the Court, rather than the spate of 40-something nominees we have seen recently who have a lack of real-world experience.
Implementing a more uniform appointment procedure can address the unbalanced nature of the Court that results when Presidents of one party appoint more than their share of Justices. This lack of balance leads to the situation we find ourselves in now, where the Court is ruling from a philosophical standpoint that is much more conservative than the public in general. When there is a mismatch between the philosophy of the Court and the views and values of the public, a legitimacy crisis ensues.
The Supreme Court should be a reflection of society, both in diversity as well as judicial philosophy. When Justices stay on the Court too long or Presidents from one party appoint more than their share of Justices, democracy suffers. Allowing each President to have a minimum of two appointments per term can balance out the Court and avoid any legitimacy crisis or assault on democracy.
Arguments Opposed to Term Limits and Uniform Appointment Procedures
Nearly three-quarters of those surveyed as part of a 2021 Marquette University Law School poll said they favored term limits for Supreme Court Justices. However, those who oppose term limits and/or uniform appointment procedures state several reasons for their opposition.
First, they claim that limiting the term of Supreme Court Justices and setting up a procedure by which every President gets to appoint two new Justices will make Presidential elections too much about the Supreme Court. In addition, they say that such a reform will politicize the Court, limiting its independence, and changing the way the public views the Court and the Justices view their job.
Second, opponents of term limits claim that more frequent, scheduled appointments will only lead to more partisan bickering at confirmation hearings. They say that regularly scheduled confirmation hearings will give the party opposing a candidate, as well as interest groups, more time to prepare their defense and strengthen their attack on the nominee.
Third, term limits opponents argue that life tenure is a keystone of our constitutional order and is essential to judicial independence. They point to our long history of life tenure on the Supreme Court as proof that it works to make sure we have an independent judiciary. They worry that limiting a Justice’s tenure on the Court—especially for younger Justices—will put them in a position of having to think about what they are going to do with their post-Court life. This could potentially influence their decisions on the bench and could be further chilling to judicial independence.
Fourth, term limits, by their very nature, will likely shorten careers of esteemed Justices who are great assets to the Court and the nation. Opponents point to Justices such as Chief Justice John Marshall, who served honorably for more than thirty-four years and was key to helping to build the Court’s stature and body of work. Term limits, they claim, will make careers like Marshall’s less possible, and could potentially deprive the Court of a Justice’s best years.
Fifth, opponents say that term limits will increase turnover among Justices, which will lead to more frequent doctrinal shifts. They fear that the increased turnover will result in cycles where major precedents are discarded, reinstated, and discarded again as new Justices with differing judicial philosophies join the Court.
Sixth, those opposed to term limits fear that guaranteeing a President two Supreme Court appointments per term will give the President too much power. They point to the fact that a President that serves two terms will be given the ability to appoint four of the nine Justices. This, they say, is far too much power. They prefer to rely on the vagaries of our current system, with its randomness, which they say balances out appointments. They prefer a system where one President appoints three or four Justices while another President appoints none.
Seventh, term limits opponents claim that limiting a Justice’s tenure on the Court to just eighteen years will encourage gamesmanship on which cases the Court hears and which they do not. For instance, a Justice who wants to weigh in on a certain question may be more inclined to grant certiorari before a question of law has been fully decided by a lower court. Conversely, a Justice may choose to deny a writ for certiorari on a case that is ripe for the Court if delaying the case results in an unsupportive colleague being booted from the Court and a new, more supportive Justice is appointed. Another variation on this theme is the possibility that a litigant, or even a lower court, will schedule their case for a time that will find a Supreme Court more friendly to their position.
Eighth and finally, opponents to term limits say that the term limits proposal, if passed as a statute, is assuredly unconstitutional. The Constitution makes clear that Supreme Court Justices serve during times of “good behaviour,” and passing any law that interferes with this provision cannot pass constitutional muster. They point to Alexander Hamilton’s observation in Federalist 78 that “nothing can contribute so much to [the judiciary’s] firmness and independence as permanency in office,” which he regarded as indispensable to maintaining the balance of power between the three co-equal branches of government.
Discussion: Many years ago, I heard a saying that I think applies to the arguments made by opponents to this reform proposal. The saying is slightly crude, so I’ll clean it up a bit. “Don’t spit on my head and tell me it’s raining.” I feel like the arguments to this particular proposal are nothing more than “spit.” They are arguments only in the most technical sense, but they are not offered in good faith. Let us look at each argument individually.
First, term limits opponents claim that guaranteeing each President a minimum of two Supreme Court appointments will make Presidential Elections too much about the Court, and by politicizing the Court, it will lose its independence and public support. Setting term limits and scheduling every-other-year appointments will not politicize the Court any more than it already is. Will systemizing the confirmation process really inject politics into the Court more than the nominations of Merrick Garland or Amy Coney Barrett did? I think not.
I see no evidence whatsoever to support the notion that the Court’s independence will be impacted at all by implementing term limits and providing for uniform appointment procedures. I’ve reviewed the literature on this matter and have yet to read one rational example to bolster this claim. Likewise, there is no reason to think that the public would show less support for a Court subject to term limits and scheduled nominations and confirmations. In fact, I would argue that the exact opposite is true. A Court made up of Justices appointed in a balanced fashion by each President will engender more, not less, public support.
Second, those opposed to term limits claim that scheduled and routine confirmation hearings will lead to more partisan bickering. After experiencing the partisan bickering that has taken place during confirmation hearings over the past thirty years or so, it’s hard to believe that this objection was made with a straight face. It seems to me that balancing Supreme Court nominations and holding confirmation hearings at least every other year will create somewhat of an administrative routine that will lessen partisan bickering. That may be a naïve expectation, but to my mind, it seems much more likely than the proposed process creating more partisan disputes.
Third, if there is any argument made by opponents to term limits that I feel has some credibility, it is this one. They claim that term limits will decrease judicial independence and will result in younger Justices worrying about what to do with their life after leaving the Court. While I have serious doubts that this argument is correct, I’ll grant that it is possible. Even so, if the Court’s independence is impacted, the impact would likely be minimal. I can imagine an anecdotal situation where a younger Justice rules in a way that would help them get a job of one sort or another in their post-Court life, but I also have great faith in the integrity of people who devote their life to the law and rise to the level of a Supreme Court Justice. Is that faith misplaced? I would say it is unlikely, but I suppose it is possible.
Fourth, opponents claim that term limits, by their very nature, will shorten careers on the bench, depriving the Court of Justices such as John Marshall, who served with distinction for more than thirty-four years, and helped to build the stature and the Court’s body of work while he was Chief Justice. Fair enough, but is time on the Court really how we judge the career of a Supreme Court Justice? For instance, is Roger B. Taney’s (author of the Dred Scott decision) career at more than twenty-eight years more distinguished than Thurgood Marshall’s (23 years, 364 days) or Louis Brandies’ (22 years, 253 days)? Can we say that John Marshall Harlan II, or Earl Warren, or Lewis Powell, or Samuel P. Chase, or Benjamin Cardoza, all of whom served fewer than eighteen years, did not have distinguished careers on the Court or did not substantially contribute to its work?
Looked at from a different perspective, I question the wisdom of a system that would allow a Supreme Court Justice to serve for more than three decades. Not every Supreme Court Justice is a “good” Justice. All are flawed, but some are much more flawed than others. Do we want a horribly flawed Justice to serve on the Court for three or four decades? I think the answer is obviously, no. Term limits can prevent that from happening.
Fifth, opponents claim that term limits will result in more turnover and will lead to doctrinal shifts and cycles where the Court swings back and forth, ruling one way on a given issue, reversing course, and going back again. To be sure, this is a possibility, but it is already happening without term limits. The current Court has overturned long held precedents dealing with a woman’s right to an abortion, voting rights, religious freedoms, and other issues that were once settled law.
In fact, this is another one of those arguments where the exact opposite is more likely to be true. More frequent, consistent turnover is more likely to prevent a coalition of Justices, such as the six conservative Justices now on the Supreme Court, from coalescing and having the power to overturn long held precedent.
Sixth, term limit opponents say they prefer the randomness of the current system, which they say prevents a President from acquiring too much power and appointing too many Justices. Again, this argument could not have been made with a straight face. Assuming those making it were alive during the period from 2017-2021, then they should remember how President Trump appointed three Supreme Court Justices in just one four-year term. The vagaries of our current system do not save us from Presidents appointing more than their share of Supreme Court Justices. Just the opposite. The current system results in Presidents appointing more than their share, leaving an unbalanced imprint on the Court. Term limits will help to cure that ill, guaranteeing that Presidents get a uniform minimum of two Supreme Court appointments for each term they serve.
Seventh, opponents of term limits say that more frequent, scheduled turnover will lead to gamesmanship on the part of Justices, litigants, and lower courts. This is a possibility, but I do not think it will happen often or have much negative impact. This is one of those situations I mentioned previously where we avoid a reform because it has a potential downside, never stopping to recognize that our current system has a different, potentially more debilitating, downside. In this example, the argument made by opponents may be correct. However, gamesmanship is also a part of our current system. Justices vote or do not vote for certiorari depending how they feel their side will do in a case, litigants time their appeals to get the most advantageous result, and lower courts sometimes rule in a way that limits the likelihood that their decision will be overturned. Term limits may change the type of gamesmanship that is played, but it will not be the cause of the gamesmanship.
Finally, opponents argue that term limits, if passed as a statute, are unconstitutional. They say that the only way a Supreme Court Justice’s term can be changed is via a Constitutional amendment. The bill detailed earlier in this chapter and offered by Reps. Khanna, Beyer, and Kennedy III is in the form of a statute that they claim does not violate the Constitution.
This argument is a bit of a red herring. We cannot be completely certain whether a statute implementing term limits for Justices is constitutional unless and until the Court rules on it. However, there is plenty of reason to believe that the statue would not violate the Constitution. For instance, the term limits law proposed by Khanna, Beyer, and Kennedy III does not force Justices into retirement after eighteen years. It simply reassigns them to a lower court. Supreme Court justices have a long history of working on lower courts, from “riding circuit” in the early days to filling in when lower courts are short-handed. The fact that there is a long history of Justices serving on lower courts leads me to believe that requiring Supreme Court Justices to work on lower courts once their 18-year term is over, assuming they do not retire, would be found to be constitutional.
I support the term limit proposal and believe that guaranteeing every President the ability to nominate a minimum of two Justices per term would correct some of the imbalances and inequities we see in our current system. One of the big reasons I support the reform is because I think it would be good for the Court without escalating the dysfunction we are currently experiencing. I also think that the term limits proposal coupled with reform of the confirmation process detailed in Chapter 4 can go a long way toward decreasing partisanship and restoring legitimacy to the Court.
*The bill was reintroduced in 2023 by Reps Khanna and Beyer (Kennedy is no longer in the House), but has very little chance of passing. The Brennan Center for Justice came out with their own proposal for term limits and a uniform nomination schedule in June 2023 that is very similar to the bill introduced in the House.