Q: Are term limits realistic?
A: Yes. Congress could pass a law right now – the Khanna-Beyer-Kennedy “Supreme Court Term Limits and Regular Appointments Act,” in fact – which says the next justice confirmed to the Supreme Court would serve there for 18 years, after which she would retain life tenure on the federal bench and have the option to serve on a lower court for as long as she wants or retire outright.
Future justices would be added to the court in every odd (i.e., non-election) year, thus standardizing the process of adding a justice and ensuring each presidential term has the same number of opportunities to impact the court.
Q: Doesn’t this have to be a constitutional amendment?
A: No, this could be accomplished through legislation. Article III of the Constitution states judges and justices “shall hold their offices during good behaviour,” which has historically been understood to mean that not until death do they and their robes part. But there’s no particular reason the “office” referred to could not be interpreted as the office of federal judge.
In other words, after a justice serves 18 years on the high court – not 30 or 35 years, as has become the norm – she could continue to serve for as long as she wanted elsewhere in the judiciary. Since 1937, when a tweak in federal law smoothed a path for retired justices to do exactly this, a dozen have chosen to continue their public service on lower courts, including recent retirees Sandra Day O’Connor and David Souter.
Q: Why term limits?
A: Judicial life tenure is not something handed down from on high. It exists in the U.S. because a series of 18th century English monarchs, on this and the other side of the Atlantic, were firing jurists whose decisions they objected to. Nearly every country whose Constitution was written after ours – not to mention 49 of 50 U.S. states – requires its top judges to step down after a certain number of years or upon reaching a certain age. SCOTUS is the outlier.
Plus, today’s court is a far cry from what our founders intended. It has become the most powerful, least accountable institution in D.C., placing its imprimatur on nearly every issue of national import, leaving our elected officials in the dust. Our justices are polarized, not only along ideological, but also along partisan lines in a way that mirrors our overtly political branches of government. And justices now serve longer than at any point in American history – 28 years apiece on average – which is too much power to rest in the hands of too few people for too long.
Finally, life tenure has turned each nomination into a political crisis. It’s no longer a priority to find the best candidate for the job, one who will serve with integrity and who has experience outside of an appellate courtroom. Instead, the party in charge scrambles to find the youngest, often most ideological nominee (who, at the same time, knows to say the right things at a confirmation hearing) in order to control the seat for decades to come.
A single, standard 18-year term at the high court would restore limits to the judiciary, increase the rotation of justices serving and broaden the pool of potential nominees – all positive outcomes no matter where you see yourself on the political spectrum.
Q: What’s the reasoning behind 18 years? How would the terms be staggered?
A: Eighteen years is long enough to safeguard judicial independence, remove the justices from day-to-day political considerations and guarantee each will have an impact on American jurisprudence. It’s still short enough to ensure that justices that are not too isolated from larger society and that changes to the court occur at regular intervals.
Nine justices serving 18-year terms would mean that every two years, one justice rotates off and is replaced. That would mean each presidential term would see two justices leave the court and be replaced. This is preferable to limiting each presidential term to just one appointment, as that would result in justices serving a 36-year term, which all but defeats the purpose.
Q: Won’t justices have conflicts if they know they’re leaving the court at time certain and opportunities await?
A: Today without term limits, justices can leave theirs seats at any time, meaning current justices face the same potential conflicts and opportunities as would a justice who is term-limited after 18 years.
Though there’s no SCOTUS Code of Conduct, every lawyer is expected to adhere to something close to, if not specifically, the ABA Model Rules of Professional Conduct, which forbids “conduct that is prejudicial to the administration of justice.” Massaging opinions to coddle a prospective employer, or overreaching in a matter to goose your own legacy, would seem like obvious violations of these rules. If a justice does not feel obligated to clear even this low bar of professional ethics, he or she frankly has no business serving on our nation’s highest court.
Remember, justices need three colleagues’ votes to get a case granted, and four colleagues’ votes to win the majority, which makes it unlikely that a justice’s attempt to “grease the wheels” would be successful.
Q: Would current justices be subjected to term limits if it passes?
A: No. Current justices would be exempt; they should be left to serve in the job as it was presented to them when they were confirmed. The only path we see for limiting the terms of the current justices would be via constitutional amendment, which we do not see as preferable given the pressing need for a more accountable court.
Q: Critics say this proposal is an effort to grab the power Democrats have squandered by losing elections. How do you respond?
A: Proposals to end life tenure at the Supreme Court have existed since the 18th century, and serious ones in modern times have existed since at least 1954, when a large majority in the Senate voted in favor of a resolution that justices should no longer serve past their 75th birthdays.
This century, numerous proposals to end life tenure have percolated in academic circles, most notably in a 2005 law review article by Profs. Steve Calabresi and Jim Lindgren titled, “Term Limits for the Supreme Court: Life Tenure Reconsidered.” (Calabresi co-founded the Federalist Society.) In the decade that followed, various legal scholars and law professors described in articles their own versions of a term limit for the Supreme Court, and many coalesced around the plan that Fix the Court adopted in 2016: justices serving a single, non-renewable term of 18 years, with a new justice being added to the court every other year.
It should also be noted that this concept has been supported in recent years by numerous public officials and presidential candidates from both the Republican and Democratic parties, including Ted Cruz, Josh Hawley, Rand Paul, Rick Perry, Ben Carson, Mike Huckabee, Beto O’Rourke, Andrew Yang and Julian Castro, to name a few.
Q: What do you know that our founders didn’t?
A: Because life expectancy was a bit lower in the 18th century, and because leaders who did live long lives retired after a reasonable amount of time in public service, it’s likely the founders did not imagine justices would hold their offices for three-plus decades, into their late 80s or 90s.
Recall that justices in previous centuries had to “ride circuit” to check in on, and hear cases in, other federal courts. These trips, generally undertaken on horseback or via carriage, were treacherous and led to the early retirements for many 19th century jurists, often due to health issues contracted on the road. Times have changed, and term limits would restore the limitations previously imposed by life expectancy and health.
What’s more, we have seen life tenure fail American democracy time and time again. Instead of serving reasonable terms of a decade or even two, justices are now holding on to their seats for as long as they can, waiting for a president with whom they share an ideology to occupy the White House, before they retire. In ways the founders could never have envisioned, confirmation hearings are a national embarrassment for both parties, with justices more ideological than ever before. A Senate majority is incentivized to hold a vacant seat open for as long as it can if the president happens to be of the opposite party, or rush a confirmation if a president is of the same party.
None of these circumstances was envisioned by the founders, and modern times call for a modern court.