Now's Our Best Chance to End Life Tenure at the Supreme Court

Let's fix the mess caused by partisan confirmations and methuselan tenures by ending life tenure at the high court.

***New (9/29/20): the first-ever Supreme Court Term Limits Act, backed by FTC***

When the founders were drafting the Constitution, a primary goal was to shield the judiciary from the political pressures of the day. English monarchs throughout the 18th century were firing judges without cause, and the founders were hoping to guarantee some level of judicial independence from the executive.

Today’s Supreme Court is not only highly political, it’s also polarized along partisan lines in a way that mirrors other broken political institutions. Our freedoms sit on a razor’s edge, with the percentage of 5-4 rulings under Chief Justice Roberts near an all-time high. A single justice’s vote holds the key on health care, voting, civil rights and religious freedom.

With lifetime appointments, justices are free to push their personal, ideological agendas for decades with almost no accountability. So how can we move the court away from partisanship and closer to the founders’ intent?

One compelling answer is 18-year term limits, which would solve critical problems:

  • Supreme Court justices now serve on average longer on average than at any point in American history (28 years) and are gaming their retirements. Life tenure gives justices the perverse incentive to stay on the court until a President with whom they tend to agree sits in the Oval Office, meaning some hold onto their seats past their intellectual primes and wait until the “right” person is elected to the White House to retire.
  • Life tenure has turned nominations into a political circus. It’s no longer a priority to find the best candidate for the job who will serve with integrity and who has broad life experience. Instead, the party in charge scrambles to find the youngest, often most ideological nominee (who, at the same time, knows the right things to say 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 most powerful, least accountable branch of American government. Each new justice would be added every other year, and since 9 (justices) x 2 (years) = 18, it’d take 18 years to reach the end of the cycle, hence 18-year terms. Appointments would become predictable exercises, not embarrassing partisan spectacles.

Concerned with constitutionality? Read below (or this or this or this)

First, the Constitution does not expressly grant “life tenure” to Supreme Court justices. Rather, this idea has been derived from the language that judges and justices “shall hold their offices during good behaviour.”

Our proposal does not contravene this requirements as it would keep justices on the federal bench as senior justices after serving 18 years on SCOTUS. Senior justices could sit on lower federal courts, as many retired justices have done, or fill in if there’s an unexpected vacancy.

Some may still feel that pushing justices into senior status would be too similar to forcing them into retirement. But “senior status” in the judiciary is a congressional creation, and one that has been almost universally accepted as a constitutionally valid interpretation of Article III.

We do take seriously the charge that this could be seen as a diminution of the position, and so our proposal would not impact current justices – that is, only future justices would be subject to this new regulation on service.

Read our term limits proposal here.

Now's Our Best Chance to End Life Tenure at the Supreme Court

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