Novel proposal for single, limited terms for Justices of the Supreme Court

Justice Antonin Scalia’s sudden death this presidential election year has jolted Supreme Court watchers, catapulting the appointment process back in the national spotlight. Among the controversies in play: lifetime tenures for judges on the highest court. As experts and pundits have noted, America enjoys the unusual distinction of being the only major country with the practice, while term limits, mandatory retirement ages, or both are the rule elsewhere.

supreme-court-justicesThat’s a problem, if one’s idealized Supreme Court consists of a regular succession of legal minds in their most physically vibrant and productive years. In response, liberal and conservative legal scholars have offered various proposals to move America to a system where individual Supreme Court Justices are each given a single, fixed term. Here are three of them:

  1. The term of each Supreme Court appointment would be directly shortened to 18 years, with the terms staggered so that a vacancy arises every two years. As such, every president would face the privilege and requirement to select at least two new Justices. This option is considered as requiring a constitutional amendment, as Article III, Section 1 of the Constitution states that “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”
  2. The President pledges to nominate only those who agree to serve a limited term and the Senate pledges to confirm only the nominees who pledge to serve a limited term. Proposed by Robert Bauer, this idea might not be tenable in practice if the risk of future presidents and senators defecting is high.
  3. Congress could create a system where every two years the president nominates a Justice to serve for 18 years and then rotate off, with the option of serving on the circuit and appeals courts. The key to this proposal is that no constitutional amendment would be necessary. Congress could enact the change by redefining what constitutes the “office” of a Supreme Court Justice, instead of rewriting the Constitution to allow for a Justice’s term to expire for reasons other than “good Behaviour.”

The technical details and political feasibility aside, would a switch to limited Supreme Court terms be a good idea? The answer is complex.

One common rationale for single 18 year terms — which would predictably allow presidents to nominate a Justice every two years — is that such a system would turn down the political heat of confirmation battles because every president would get to nominate at least two Justices in each presidential term. (More, if Justices unexpectedly die before the end of their appointments.) In fact, because two vacancies would unavoidably arise each presidential term, appointing multiple Justices would become a job requirement and core part of presidential campaigns.

Alternatively, the high and regular turnover could instead turn the political frenzy into a regular occurrence, plus produce multiple vacancies if the Senate gridlocks. That could be disastrous for the Court on a fundamental level, as six Justices are required for quorum. We could also see strange, unanticipated effects on the rest of the judiciary and the nominations process for them, if vastly more lower court judges can expect to rise to the Supreme Court one day.

Arguably, the most significant concern raised hinge on the understanding that lifetime appointments insulate Justices from crass political pressures. The “revolving door” is one obvious form: knowing that they’ll be free to work in lucrative private sector positions afterwards, would the Justices rule differently on cases involving potential future employers and clients? Another concern is that with the continual injection of new blood into the Court, its political makeup would become internally less stable and as a whole more responsive to rapidly evolving political and social norms of the country—which may be desirable or pernicious or both.

That said, turning Supreme Court appointments into single, finite terms is not the same as requiring Justices to face a “reelection,” whether through the electoral process or another judicial retention process. To the extent that judges not having to face a referendum is the supposed insulator from improper political considerations, moving to single fixed terms wouldn’t per se change individual Justices’ decision-making. Under the new system, they still wouldn’t face changes in the prospect of reward or threat of job loss at the hands of voters or Members of Congress with impeachment powers. That calculation would remain the same, as would personal worries about legacy, historical judgments, and the general esteem of the legal community. The revolving door is a more likely problem, but Justices at the end of their terms could be barred from taking private sector jobs laden with potential conflicts of interest.

The arguments in favor of limiting the Supreme Court Justices’ tenures nonetheless include some compelling ones: the assurance of retirement before Justices get too afflicted with the frailties of old age, such as dementia; the appointments reflecting a tighter correspondence between the judicial branch and the political branches rather than the randomness of death; and greater freedom for presidents to prioritize the merits of a potential pick’s jurisprudence rather than relative youth. For those reasons and more, we can expect continuing interest from scholars, lawmakers, political pundits, advocacy groups, and even lay voters.

There is a wealth of references and scholarly publications on this topic. For more information, resources to check out include Fix the Court; “It’s time for term limits for Supreme Court justices,” Vox; “The continuing debate over the Supreme Court and term limits,” National Constitution Center; “Why it’s time to get serious about Supreme Court term limits,” The Washington Post; “Law professor proposes term limits for Supreme Court justices,” Cornell Chronicle; and “New Focus on the Effects of Life Tenure,” The New York Times.