“The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour…”
– U.S. Constitution, Article III, Section I
When our founding fathers gave Supreme Court justices life tenure on the bench, the goal was to shield those serving on the court from the political pressures of the day. Today’s justices, however, are polarized along partisan lines in a way that mirrors our other broken and gridlocked political institutions.
Though the court’s most contentious decisions used to be unanimous, or nearly so, due to months or even years of consensus building, the percentage of 5-4 rulings under Chief Justice Roberts is at or near an all-time high. From health care to religious liberties to gun rights to business regulations, these one-vote margin decisions tend to be on the toughest and most divisive issues facing the nation.
The justices wield an enormous amount of power, and with lifelong appointments, they are free to push their personal politics in irreversible ways that affect the everyday lives of millions of Americans. So how can we hold the court accountable to the Constitution and ensure that the justices remain both independent from political pressures and responsive to the will of the people?
One compelling answer is 18-year term limits. Right now, life tenure is doing little to ensure the justices remain above politics. If anything, the longer justices stay on the court, the more they pursue their own political agendas. Limiting Supreme Court justices to 18-year terms would solve two key problems with the court that have led to the extreme partisanship and harmful polarization we see today:
A single, standard 18-year term at the high court would restore limits to the most powerful, least accountable branch of American government, 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.
Now let’s address possible concerns over constitutionality. First, recall that 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, as noted above, “shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”
Our proposal does not contravene these requirements as it would keep justices on the bench, as fully compensated senior justices, after having served 18 years at the Supreme Court. Senior justices could sit on lower federal courts, as many retired justices have done, or fill in if there’s a prolonged vacancy.
Some may still feel that pushing justices into senior status would be too similar to forcing them into retirement. However, senior status in the judiciary is a statutory 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 affect the current justices – that is, only future justices would be subject to this new regulation on service.
Concerns over how justices may act in their last couple of years on the job necessitate a number of bizarre assumptions about the way the high court operates and the kind of individuals who sit on it.