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Would a SCOTUS Term Limits Statute Be Constitutional? Yes, Of Course.

[Post originally written 8/30/21; 9/2/21 update: SCOTUS term limits bill introduced in the House; 12/8/21 update: SCOTUS Commission report discusses this topic]

Some legal scholars believe that term limits imposed on Supreme Court justices would have to be instituted via constitutional amendment and that statutory proposals, such as ours, are unconstitutional.

But many others legal scholars, including members of the Biden Supreme Court Commission, disagree and have even endorsed congressional proposals to enact prospective Supreme Court term limits via statute.

Detractors most commonly cite the “good behavior” clause of Article III of the Constitution — stipulating that justices “hold their offices during good behaviour” — as rightly understood from English common law as an appointment for life.

Our proposal does not violate the “good behavior” clause, as future justices could keep their office for life, but they would move into “senior status” after 18 years.

As senior justices, they would keep their titles and compensation, but they would not hear SCOTUS cases unless called upon, say in the event of a recusal or unexpected vacancy. And as justices have been able to do for eight decades, they could opt to serve on a lower court for as long as they wanted. One justice (Souter) is doing so as we speak.

Remember, “senior status” in the judiciary is a statutory creation and has been almost universally accepted as a constitutionally valid interpretation of Article III. Expanding senior status to apply to the justices of the Supreme Court would seem to be a natural extension.

What’s more, a majority of sitting justices themselves have indicated that a term limit, so long as it was long, would be fine.

For more information on the constitutionality of our proposal, read editorials by Penn Law Prof. Kermit Roosevelt, FTC’s Tyler Cooper or FTC’s Gabe Roth.

For what the justices themselves have said about ending life tenure at the Supreme Court, here’s a one-pager on that.

And you can find recent articles, press releases, editorials, op-eds and papers on Supreme Court term limits here.

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