Fixed, non-renewable term limits for Supreme Court justices would lower the temperature of the high-stakes confirmation battle that occurs when seats fall vacant, and would introduce accountability into what is now the “least democratic” branch of government, according to a forthcoming essay in the Cardozo Law Review.
“Justices of the Supreme Court are serving longer on average than ever before, nearly twice as long as they served just two generations ago,” said the authors.
“In short, the politicians in robes wield too much power, and they wield that power for too long.”
The essay proposes that the current system of life tenure for justices be replaced with 18-year-terms, echoing a proposal already contained in a bill introduced in the House of Representatives in September.
That bill, entitled the Supreme Court Term Limits and Regular Appointments Act, would establish staggered 18-year term limits for justices and require the president to nominate a new justice every two years.
While the bill is considered unlikely to win traction as the new Congress focuses on pressing crises such as the pandemic, it adds an added dimension to the nationwide debate over the future of the Supreme Court prodded by the push to confirm Amy Cony Barrett to fill the seat left vacant by the late Ruth Bader Ginsberg in the waning days of the Trump presidency.
Some critics, fearing that the court will now be slanted rightward for the foreseeable future, have proposed to increase the number of justices—a solution President-elect Joe Biden is believed to oppose.
Under the bill, the current sitting justices would still serve out life terms.
But the essay observed that long-term rethinking of the justices’ terms of office would help address the power vacuum created by the gridlock in national politics, which given the Supreme Court a more determinant role in U.S. society than the Founders envisioned.
“The notorious gridlock between Congress and the Executive—and often between houses of Congress—this century has created a power vacuum the U.S. Supreme Court has been more than happy to fill,” the essay said.
“On race, guns, healthcare, marriage, campaign finance, school choice, religious liberty, abortion, voting, and immigration, lawmakers sit paralyzed as the unaccountable third branch decides for 330 million of us what the law is on each of these issues.”
Establishing term limits would lower the stakes in judicial confirmation battles, and “ensure that no particular nominee would hold his or her seat for decades, with no end in sight,” argued the essay’s authors, Tyler Cooper, Amanda Dworkin, Dylan Hosmer-Quint, and Amanda Peskowitz.
Cooper is a senior researcher for Fix the Court, a national advocacy group promoting federal judicial reform. Dworkin, Hosmer-Quint and Peskowitz are law clerks with the group.
The average tenure for a Supreme Court justice from 1789 to 1970 was 14.9 years. Since then, the average amount rose to 26.1 years, a reflection of the notion that younger justices are chosen to get the most time out of their life tenure, according to the essay.
Knowing that the Justice he or she appoints will stay for life raises the political stakes for presidents and members of their political party. President Donald Trump’s vow to appoint conservative justices to fill the next vacancies, in addition to appointing conservatives at other levels of the federal judiciary, has been a key factor in the support he commanded in the Republican Party and among conservatives at large.
That political maneuvering would be blunted by term limits, the essay said.
“An eighteen-year term limit would blunt the effects of the rise of average tenure and negate the incentive to nominate younger jurists while overlooking more seasoned candidates,” said the article.
“Limiting tenures and regularizing appointments would work to reduce the arbitrariness and political strategizing that has come to define Supreme Court vacancies.”
Under the current system, justices sniffing the electoral winds and fearing that a new administration would try to change the high court’s direction, sometimes choose to take a “politically motivated retirement,” which the authors describe as a common issue.
“Nearly two-thirds of resigning justices retired when a president of the same party was in office, while 59 percent of justices who died in office died during the term of a president of the opposing party,” noted the article.
“A natural consequence is that more frequently we have seen justices serve longer than they have been mentally fit for the job,” the authors said, citing Justice Thurgood Marshall and Chief Justice William Rehnquist, who both struggled in their last few years of service due to health complications.
The polarization of Supreme Court justices is even more prevalent given that many recent cases have been decided by small margins, “often turning on the vote of a single justice,” said the essay.
“This has not always been the way the Court has operated, as most clearly evidenced by the [unanimous ruling] in Brown v. Board of Education (1954) despite the fact that the outcome was highly politically contentious at the time,” said the article.
“Over the last 20 years, however most ‘major cases’ have been decided 5-4.”
Because life tenure is unpredictable, gaps between the departure due to death or retirement and the appointment of a new justice could be “anywhere from a couple of months to eleven years,” the essay said, noting that former President Barack Obama nominated two Justices over eight years while President Trump has nominated three justices within only one four-year term.
“The Founders conceptualized government positions like the presidency and the bench to be a public duty, something to be completed before starting a new chapter in life, rather than a lifetime job,” said the article.
Critics of the idea worry that imposing term limits for Supreme Court justices would lead to “final period problems” that would create more “partisan decision-making, legacy creation, and collegiality,” during the end of a justice’s term.
But the authors respond that each category—legacy creation, partisan decision-making and collegiality— already exist in some aspect with life tenure, and that imposing term limits could even have a positive and opposite effect, specifically with collegiality.
The question of limiting the power of individual justices is furthered by the conversation of “court packing,” which would add more justices to the current nine-member Supreme Court.
Support of court packing arose after Amy Coney Barrett was confirmed in October and the Supreme Court tipped to a conservative majority.
“The Constitution says nothing about how many justices there must be on the Supreme Court, and over time, the number has fluctuated,” said The Washington Post.
“Congress and the president might decide that the court majority is too far out of line with their understanding of the Constitution and the law or public opinion, and then add seats and fill the court with justices who think more like them in the hope of rebalancing the scales.”
Some warn that expansion of the court would backfire, as the two political parties would most likely enter a continuous cycle of fighting for majority, creating “a recipe for an unwieldy court and increased partisanship on the court,”
Term limits, on the other hand, would help democratize the court, the essayists claimed.
“Whether there’s a vacancy now or in the future, whether it’s a 40- something Democratic appointee who’s poised to serve until superannuation or a Republican one, a less powerful Court makes for a more powerful citizenry, which is exactly the point of living in a democracy,” they wrote.
Many countries appoint their senior justices for life, but several have mandatory retirements. In Canada the mandatory retirement age for a Supreme Court justice is 75; in Brazil, it’s 70.
The complete forthcoming essay “Retiring Life Tenure: On Term Limits and Regular Appointments at the Supreme Court,” can be read here.
Emily Riley is a TCR justice reporting intern.