Courting Disaster: The Case for Supreme Court Term Limits

Introduction

What happens when the public begins to lose faith in the highest court of America? What happens when the nonpartisan arbiter of legal matters appears to be pursuing a partisan political agenda?

As the apex of the American judicial branch, the Supreme Court oversees all lower federal courts, and its decisions are the final word on all federal questions. The nine justices who sit on the Supreme Court wield unprecedented power over contentious social and political debates, with their opinions impacting generations. In recent years, America has witnessed an imbalance in political nominations, creating a heavily imbalanced court. Broadly, this has led to a general decline in trust of the Court [1]. And if the Supreme Court lacks the legitimacy to play its role, it sets the stage for a foundational crisis.

This problem demands a solution, and we suggest term limits for justices. Term limits aren’t novel in our government. All elected officials have terms that are fixed, though renewable, and the U.S. president can only serve two terms. However, for members of the federal judiciary there is no limit and no renewal. As we will show, the system of lifetime tenure, coupled with the poorly-designed process by which the Court is staffed, is responsible for the current crisis of legitimacy. With SCOTUS imposing extreme and minority views about abortion, affirmative action, gay marriage, and free speech, the case for term limits is stronger than ever. In this article, we argue that a statute regularizing the Supreme Court appointment process via term limits is both necessary and constitutional.

The Legacy of Court Tenure:

U.S. Supreme Court Justices have always had what we now understand as life tenure. To guarantee an independent Judicial branch and to protect judges from partisan pressures, Article III of the Constitution provides that judges will serve during “good Behavior” and that their salaries cannot be reduced [2] Without the need to worry about reappointment or reprisal, they are free to make decisions independent of public opinion or political pressure. But there is little reason to think unlimited tenure is necessary for judicial independence. In fact, no other modern democratic country gives its judges unlimited terms [3] And repeatedly in American history, when the Supreme Court has resolved important and divisive issues contrary to the will of the people, many raise questions about whether the system of life tenure makes sense.

Americans have typically accepted the authority of the Supreme Court because they believed that the Justices were interpreting the law to the best of their abilities, rather than imposing political views. The Court’s reputation survived even Bush v. Gore, [4] which looked like a nakedly partisan intervention in the political process. After the Court elevated the Republican nominee, George W. Bush, to the presidency in 2000, Democrats were furious. But the damage was not permanent. A 2007 study found that “the Court seemed as widely trusted today as it was a decade ago,” with no significant divisions by party [5].

But this moment may be different. The Court’s recent decisions – taking away the right to abortion by overruling Roe v. Wade, [6] elevating religious beliefs above antidiscrimination laws, banning affirmative action, attacking the foundations of the administrative state – disrupt a constitutional order that has been accepted for over half a century. The Court cannot drag America back to a history we do not want to repeat, but it can destroy itself in the attempt.

Only 26% of the American public reported a “great deal of confidence” in the court in 2021, falling to 18% in 2022 — an all time low since the General Social Survey began recording this data in 1973 [7]. Restoring the legitimacy of SCOTUS is a daunting task. But if we understand the problem, we can find the solution.

We can fix this.

The Case for Supreme Court Term Limits

The partisan balance on the Supreme Court is now 6-3 Republican to Democrat. Of the last twenty Justices appointed, fifteen were nominated by Republican presidents. Yet if we go back to the presidency of George H.W Bush – who appointed Clarence Thomas, the current most-senior Justice – we see that Republicans have won the presidency only three out of eight times since then. They have won the popular vote only once [8]. Why is the Supreme Court so out of balance with the public will?

To make the easiest point first, it is not because of the wisdom of the Founding Fathers. The drafters of the Constitution, notoriously, did not anticipate the modern party system. The appointment process they devised, under which each president fills Court vacancies as they occur, makes sense in a world without parties. In such a world, presidents will pick whoever they think the best judges are, and different presidents may have different opinions, but it doesn’t make much difference how many appointments each president gets.

But in the America we live in, the world of the two-party system, the Supreme Court has become a power center over which the parties fight. Who appoints the justices matters a lot – and the Republicans have simply played the game better.

Barack Obama inherited a court with a 7-2 Republican tilt. Because two of the Republican appointees, John Paul Stevens and David Souter, often voted with the Democratic appointees, Obama’s ability to replace them with Sonia Sotomayor and Elena Kagan changed the balance to 5-4 Republican without affecting the outcomes much. The unexpected death of Antonin Scalia in February 2016 offered the possibility of an actual change in party control. In what was clearly an attempt to preserve partisan control, the Republican majority in the Senate refused to consider any nominee to the Supreme Court, arguing that the next president should be the one to appoint Scalia's replacement [9]. When Donald Trump won the presidency (though not the popular vote) in 2016, he immediately appointed reliable conservative Neil Gorsuch, and later replaced the retiring Anthony Kennedy with Brett Kavanaugh.

Ruth Bader Ginsberg’s September 2020 death provided an obvious parallel to Scalia’s passing: early voting in the presidential election had already begun. But, with much irony, Trump was able to push through the appointment of Amy Coney Barrett. Winning the electoral college once, and the popular vote never, Donald Trump appointed three justices – more than either Bill Clinton or Barack Obama had in the eight years they each occupied the Oval Office. The fact that a party dominates the Court while winning a minority of elections would not matter if the justices did not enforce partisan views. This was true for a while – perhaps even as recently as 1990. Until about the 1980s, Supreme Court nominees tended to represent the views of an elite legal world that was not particularly polarized. For example, the Supreme Court that decided Roe v. Wade in 1973, voting 7-2 in favor of the right to abortion, was a 6-3 Republican dominated Court. But by the 1980s, the legal elite had begun to polarize in the same way as the rest of America. Partisans of the left and right were the best available nominees. And after David Souter surprised the Republicans by turning out to be a moderate, presidents began to take more care to ensure that they were picking reliable partisans.

What that means is quite simple: when presidents who represent a minority of the American people appoint a majority of the Justices, the Supreme Court ends up imposing the will of that minority on the rest of us. With the issue of reproductive rights, for example, 67% of Americans favored keeping Roe v. Wade [10]. When the court reversed Roe in 2022, it split cleanly down partisan lines: six Republican appointees outvoting the three Democrats. Two-thirds of Americans saw their views rejected by two-thirds of the Justice [11]. What would fix this? To prevent a minority party from dominating the Court, we need to regularize the appointment of Justices, so that each president exerts an equal influence on the Court. If each president appointed two justices per four-year term, Republicans might still dominate the court – but it would be because Republicans won national elections, not because they got lucky with mortality or played hardball with appointments.

But simply regularizing appointments is not enough. If Justices are added to the Court at a pace of two every four years, the Court will not remain at nine Justices unless they depart the Court at the same rate. Regular removal is necessary to keep the Court the same size. It will also help promote generational diversity and prevent one president from having an outsized impact simply due to the longevity of an appointee [12]. Picking justices for fixed terms will allow presidents to pick the best people available, rather than looking for increasingly younger nominees to maximize their impact. Regular turnover tied to the outcome of presidential elections will restore the legitimacy of the Court in the eyes of all Americans.

The Constitutionality of Term Limits

Can this reform be done by statute – meaning by law, rather than constitutional amendment? Critics of term limits argue that they are inherently unconstitutional. However, the Constitution gives Congress significant discretion to determine the shape and structure of the Court. Congress can regulate the Court’s jurisdiction and procedures. It can regulate the Justices’ duties, too: in the past, it has directed them to ride circuits – to hear cases in the lower federal courts. What it cannot do, according to the Constitution, is remove them from office: all federal judges 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.” [13] The key question for a reform proposal, then, is whether it is possible to get the benefits of term limits without removing Justices from office. What if Congress modified the duties of a Justice, so that after 18 years in active service, hearing Supreme Court cases, they moved to what we could call “senior status,” hearing cases on the lower courts but no longer participating in the ordinary work of the Supreme Court. Would a Justice who did that still hold the office? We grant that most people’s intuitive response to this question is probably “no.” But it turns out that our current law answers “yes,” and the Supreme Court apparently agrees. Let us explain.

Federal judges, including Supreme Court Justices, who have met specified service requirements have two options available to them under current law if they no longer wish to carry a full caseload [14]. First, they may retire from the office. A judge or justice who retires from the office is no longer a federal judge: they may not exercise the judicial power of the United States by deciding cases. They are entitled to receive, for the rest of their lives, an annuity equal to the salary they were receiving at the time they retired.

Second, they may retire from regular active service. Judges who do this are still federal judges; in the words of the statute, they “retain the office.” They may continue to exercise the judicial power of the United States by deciding cases, and their salaries are still constitutionally protected. When lower court judges do this, we call it taking senior status; when Supreme Court Justices do it, we call it retirement. But the label is the only difference. Retired Justice David Souter, for example, frequently sits on the federal court of appeals for the First Circuit, passing on his experience and wisdom. The Supreme Court has squarely held that a court of appeals judge who takes senior status “does not relinquish his office” as far as the Constitution is concerned – so why not Justices, as well? [15] Congress cannot remove a judge from office, the Court said, or diminish the compensation, but it “may lighten judicial duties.” [16]

We may be confident, then, that Supreme Court Justices who retire voluntarily under this statute do not relinquish the office. They are still Supreme Court Justices. It follows quite straightforwardly that a Justice who assumes senior status automatically after 18 years would not relinquish the office either. A statute providing for retirement after 18 years would not remove the Justice from office – and therefore it could not be a violation of the Good Behavior clause [17].

We do not think the issue is entirely free from doubt. Voluntary and forced retirement are different, certainly. But if voluntary retirement does not remove a judge from office, it is hard to see how involuntary retirement would do so: the judge is in exactly the same position regardless of how they got there. Suppose you are sitting in a chair in your office. We agree that I am not allowed to force you to leave the office. We also agree that if you voluntarily stand up but remain in the room you are still in your office. Can it be that if I require you to stand up after an hour, but not leave, I have violated the rule against forcing you to leave? Surely not.

So existing law and practice, supported by Supreme Court precedent, suggest that retired Justices still hold the office and therefore mandatory retirement does not violate the Good Behavior clause. Critics of the proposal seem to concede that the Good Behavior Clause is not triggered unless a judge is removed from office. They have offered essentially three arguments that mandatory retirement is still unconstitutional. First, they assert that involuntary retirement is different from voluntary retirement. That is true enough: it is different in several ways. But they have never explained why it is different in terms of holding the office, which is the crucial issue for the Good Behavior Clause.

Second, critics have suggested that perhaps a Supreme Court Justice is appointed to two offices: Article III federal judge and also Supreme Court Justice, and that upon retirement they relinquish only one, that of Supreme Court Justice. This is a complicated theory. If true, that would explain why they can continue to act as judges (because they still hold the office of judge) and also why they cannot be forced to retire (because it involves the surrender of an office). The Presidential Commission took this argument seriously enough to mention it, at least in a footnote [19]. But as Commissioner Will Baude, a critic of term limits, observed in earlier writings, the argument is “too clever by half.”[20] Justices receive one nomination, one confirmation, and one commission solely for the Supreme Court. And it is preposterous to suppose that the drafters of the 1787 constitution silently created a two-office appointment structure to deal with a statutory retirement scheme that did not exist until 1919, and did not apply to Supreme Court Justices until 1937. So we conclude that the idea of a two office system for justices is rather far-fetched.

Third, critics suggest that the Supreme Court may have actually been wrong in Booth. A judge who retires from active service no longer holds the office. Senior status, as created by the current retirement statute, “is actually unlawful.” Or perhaps not—Baude qualifies the argument with the phrase “it is possible.”[21] But in either case, he says, current practice is “a gloss or liquidation that makes an exception for judges who voluntarily accept the change,” and we should not extend that practice to involuntary retirement.

Perhaps the Court was wrong in Booth. It is certainly possible for the Supreme Court to make mistakes. And perhaps the current Supreme Court would simply say that involuntary retirement is different, without explaining why. But, in our view, a unanimous decision intimately bound up with over a hundred years of established practice is sufficient support for the proposal, at least in the absence of an explanation of the first argument of how the voluntary/involuntary distinction relates to holding the office.

The 18-Year Proposal

If the proposed system of term limits is constitutional, then the question is how to design the system. The most popular proposal contemplates 18 year terms. Under this system, every two years, a new justice would be appointed. They would serve for 18 years, and then assume a senior status. Through this two-year stagger, the court would stand at nine justices with consistent turn around. This would solve the problem of minority capture of the Supreme Court by equalizing the impact of presidential elections. Justices would still be able to sustain distinguished careers and accumulate valuable experience over their 18 years; 18 years is at the longer end of terms by international standards. And, presidents would not be tempted to appoint younger justices in order to get more years out of them.

Critics of term limits argue that regular presidential nominations, twice per term, would systematically increase the partisanship of the Supreme Court. But this criticism misunderstands both the problem and the solution. First, Justices are evidently partisan now. That has very little to do with the timing of their appointments. It has happened because elite legal opinion has become polarized, making it possible for presidents to identify ideologically reliable nominees, and because presidents have taken greater care to select such candidates. Changing to a system whereby each Justice would serve 18 years rather than perhaps 30 or 40 years would truly lower the stakes of each appointment and make it less essential that presidents pick reliable partisans.

But second, and more important, partisanship is not the problem, at least not in the sense in which we believe justices are partisan. A justice who systematically sought to advance the fortunes of their political party would be interfering with democracy, which is illegitimate. But we think that such judicial behavior is relatively rare. A few decisions such as Shelby County [22] and Brnovich [23] come close to the line; Bush v. Gore crosses it. More often, when people complain of partisanship they mean that the justices are advancing ideological positions that we associate with conservative or liberal values. But as long as constitutional decisions require value choices – liberty vs. equality, for instance – there will be an ideological component to them. Value-free adjudication is not possible, so value-laden adjudication is not a problem. The problem arises when the values of the Justices diverge from the popular will so much so that they impose the values of a minority on the rest of us. That is what is happening now, and term limits are the solution.

Term limits will also protect judicial independence. Judicial independence requires that justices be free to decide cases without fear, secure in the knowledge that they will be neither rewarded or punished for their vote. 18-year nonrenewable terms protect this principle of independence, while working to erase the unbalanced partisanship of the current system and eliminating the chaos accompanied with the nomination process.

Conclusion

There is a strong and cross-partisan appetite for court reform in America. As reported by a Brookings commentary, 57 percent of Republicans, 82 percent of Democrats, and 51 percent of Independents are in favor of setting a specific number of years that justices serve instead of life terms [24]. Members of Congress have already attempted to introduce 18-year, nonrenewable terms, like the TERM Act in 2021.

Term limits are sometimes presented as a partisan response to a Court that is issuing decisions one side does not like. But that is not what they are. Term limits are a nonpartisan response to a broken system. The composition of the Supreme Court is currently determined by chance, partisan hardball, and strategic retirement decisions by the Justices. That is no way to staff one of the three co-equal branches of the federal government.

We can improve on what we have now. America stands for progress, for being better than the past. Term limits are one of the most obvious ways we can give future generations a better country than the one we were born into.

Bibliography

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2. The United States Constitution, Article III, Section 1

3. Blake, Aaron. “The Big Ideas from Biden’s Supreme Court Commission, Explained.” Washington Post, December 8, 2021. https://www.washingtonpost.com/politics/2021/12/08/big-ideas-bidens-supreme-court-commission-explained/.

4. Bush v. Gore, 531 U.S. 98 (2000).

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6. Roe v. Wade, 410 U.S. 113 (1973).

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9. Politico. “McConnell Throws down the Gauntlet: No Scalia Replacement under Obama,” February 13, 2016. https://www.politico.com/story/2016/02/mitch-mcconnell-antonin-scalia-supreme-court-nomination-219248.

10. Beauchamp, Zack. “The Supreme Court’s Legitimacy Crisis Isn’t Only About the Decision to Overturn Roe v. Wade.” Vox, June 26, 2022. https://www.vox.com/23055620/supreme-court-legitimacy-crisis-abortion-roe.

11. Roe v. Wade, 410 U.S. 113 (1973).

12. Brennan Center for Justice. “Supreme Court Term Limits,” September 20, 2022. https://www.brennancenter.org/our-work/policy-solutions/supreme-court-term-limits.

13. The United States Constitution, Article III, Section 1

14. United States Courts. “About Federal Judges,” n.d. https://www.uscourts.gov/judges-judgeships/about-federal-judges.

15. The White House. “Presidential Commission on SCOTUS | The White House,” August 9, 2022. https://www.whitehouse.gov/pcscotus/.

16. United States Courts. “About Federal Judges,” n.d. https://www.uscourts.gov/judges-judgeships/about-federal-judges.

17. The White House. “Presidential Commission on SCOTUS | The White House,” August 9, 2022. https://www.whitehouse.gov/pcscotus/.

18. Brookings. “Term Limits—a Way to Tackle the Supreme Court’s Crisis of Legitimacy | Brookings,” September 30, 2022. https://www.brookings.edu/articles/term-limits-a-way-to-tackle-the-supreme-courts-crisis-of-legitimacy/

19. The Presidential Commission on Supreme Court Reform, Report at 134 n.71.

20. Will Baude, The Unconstitutionality of Justice Black, 98 Tex. L.Rev. 327, 342 (1998).

21. Will Baude, Reflections of a Supreme Court Commissioner, 106 Minn. L. Rev. 2631, 2642 (2022).

22. Shelby County v. Holder, 570 U.S. 529 (2013)

23. Brnovich v. Democratic National Committee, 594 U.S. ___ (2021)

24. Brookings. “Term Limits—a Way to Tackle the Supreme Court’s Crisis of Legitimacy | Brookings,” September 30, 2022. https://www.brookings.edu/articles/term-limits-a-way-to-tackle-the-supreme-courts-crisis-of-legitimacy/