By Gabe Roth, Fix the Court executive director

Fix the Court has been advocating for term limits at the Supreme Court for nine years now.

Why nine and not the roughly 10 years that Fix the Court has been around? That’s because when we started out, SCOTUS term limits was far more popular on the right than the left, and we wanted to focus on reforms that had broad bipartisan support.

Even so, since it’s good policy not to have a bunch of unaccountable judges who can serve for 30 or 40 years deciding the fate of our country, we added the fix as our sixth one in 2015, as you can see here.

FTC worked with Rep. Khanna on his Supreme Court Term Limits and Regular Appointments Act, which has been introduced in each of the last three Congresses, most recently in 2023. We endorsed it each time, albeit with a caveat, which I’ll mention below. (Yes, term limits by statute is constitutional.)

As far as the two other pieces of term limits legislation, we do not believe it’s constitutional to push any of the current nine off the panel of justices who hear cases. Both would do that: Sen. Whitehouse’s bill would push off the senior-most justice(s) on appellate jurisdiction cases (~99% of the docket), and Rep. Johnson’s bill would push off the senior-most justice(s) on appellate and original jurisdiction cases (100% of the docket). So we’re riding with Ro, with some suggestions for improvement.

Five suggestions for fixes/additions to our favored SCOTUS term limits proposal:

1. Remove the 120-day limit to advice and consent. Section 9 of Rep. Khanna’s bill, which forfeits the Senate’s advice and consent authority if they fail to vote on a President’s nominee within 120 days of their nomination, though a creative way to get around the Garland Problem (no need to rehash), is very unlikely to be constitutional. Neither is the idea desirable for the Senate, which would not easily forfeit such a fundamental power.

There are other ways to encourage a vote on a nominee, which is our no. 2.

2. Change the Senate rules to encourage and hasten votes on SCOTUS nominees. Removing the (likely unconstitutional) 120-day limit to advice and consent doesn’t end the story when it comes to ensuring the Senate votes on nominees. Sen. Jeff Merkley has a thoughtful proposal that would help, the Every Supreme Court Nominee Deserves Timely Consideration Act. Introduced last year, the bill, per Merkley’s office, would “mirror the Congressional Review Act process enabling 30 senators to call for the discharge of a Supreme Court nomination from the Judiciary Committee after 60 days of inaction and compel debate and [a] vote.”

This we know is constitutional and would speed up the process of going from nomination to floor vote.

3. Permit the President to nominate two justices in their first year of office. This might be the most controversial of the five yet also the most helpful toward ensuring a President’s picks get seated, and it comes from a 2023 American Academy of Arts and Sciences report (p. 24 of this PDF): “[Our] proposal provides that the president may put forward and seek confirmation of a nominee for the Supreme Court at any point during the president’s term in office.”

That means two picks and two confirmations in Year 1, though the second pick would only begin serving in Year 3.

Why move the confirmation timeline of the second nominee? AAAS: “This feature reduces the risk of a Senate impasse. Historically, the president’s political party has tended to lose seats in the Senate in midterm elections, meaning that the president would often have a more receptive Senate during the first half of the presidential term.” Seems reasonable to me.

4. The justices should begin their commissions on July 4 of an odd-numbered year. Besides the COVID year, SCOTUS has completed handing down the opinions of the term by Independence Day every year in recent memory. If each President gets two picks by term, they’re going to be ready with those picks by Inauguration Day, Jan. 20.

But adding a justice in the middle of a term might cause unnecessary havoc, so a new justice is best added ahead of the start of a new term, as Justices Roberts, Sotomayor, Kagan and Jackson were. A July start date gives new justices enough of a ramp-up time, nearly three months, before they start hearing cases.

5. “Chief Justice” shouldn’t be a separate appointment but rather a post that devolves to the senior-most associate justice in Years 15 and 16 of their 18-year service. This is adapted from Yale Law Prof. Akhil Amar’s proposal (no. 15 here), which gives the position to the senior-most associate justice in Years 17 and 18 of their 18-year term. I prefer years 15 and 16 for two reasons.

One is actuarial, as a younger justice is more likely to still be on the Court in Years 15 and 16 than in Years 17 and 18. The other is practical, as at any given time you’d have a Chief Justice, an Immediate Past Chief Justice and a Future Chief Justice all sitting together. The current Chief could learn the ropes from the prior one, and the future Chief could learn from the current and prior ones.

Chief Justices have a fair amount of power (see pp. 1652-1657), which I believe should be distributed equally over time and equally among the justices.