Introduction
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. On race, guns, healthcare, marriage, campaign finance, school choice, religious liberty, abortion, voting, and immigration,1 lawmakers sit paralyzed as the unaccountable third branch decides for 330 million of us what the law is on each of these issues.
What’s worse, the Justices of the Supreme Court are serving longer on average than ever before, nearly twice as long as they served just two generations ago. In short, the politicians in robes2 wield too much power, and they wield that power for too long.
Limiting a Justice’s tenure on the High Court to a more reasonable length would address these problems head on.
Future Justices serving a nonrenewable eighteen-year term, as the most common proposal dictates, would decrease the amount of power that any one Justice would hold over American jurisprudence. It would lower the political consequences of any one judicial confirmation battle by ensuring that another chance at a nomination would soon come. And it would ensure that no particular nominee would hold his or her seat for decades, with no end in sight.3
The current system incentivizes several objectionable practices—finding a nominee as young as possible who could serve forty or fifty years, holding a vacancy open for as long as possible to thwart an opposite-party nominee and rushing to confirm a justice without ample time for vetting—that we can’t stop right now. But these do make it clear that the system of appointing Justices is in dire need of fixing.
A. Justice Today Holds Too Much Power
The Supreme Court today holds too much power not only because of choices made by the Court itself, but also because of the choices made by the other branches. The legislative branch has all but abandoned articulating its own interpretation of the Constitution and its own duly passed legislation. Congressional overrides of the Supreme Court’s statutory decision-making were once an important yet routine practice; this practice, however, has recently declined precipitously.4
Adding to the increase in power the Justices wield today is that major cases are increasingly decided by narrow margins, often turning on the vote of a single Justice. This has not always been the way the Court has operated, as perhaps most clearly evidenced by the Court ruling unanimously in Brown v. Board of Education despite the fact that the outcome was highly politically contentious at the time.5 Over the last 20 years, however most “major cases” have been decided 5-4.6
Justice Ruth Bader Ginsburg, a renowned liberal, being replaced by a Justice Amy Coney Barrett, a renowned conservative, has widely been expected to swing American jurisprudence on a panoply of hot-button political issues including abortion rights,7 healthcare access,8 and LGBTQ+ rights.9
B. A Justice Today Serves for Too Long
The average tenure of a Supreme Court Justice from 1789 to 1970 was 14.9 years.10 Of the Justices who have left the Court since then, the average length of service has risen to 26.1 years.11 A natural consequence is that more frequently we have seen Justices serve longer than they have been mentally fit for the job.
Serving for thirty-six years, Justice William Douglas’s mental incapacity was described in contemporaneous press accounts12 and was a source of concern among his peers on the bench.13
More recent examples of Justices serving through diminished capacities are those of Justice Thurgood Marshall, who retired in 1991,14 and Chief Justice William Rehnquist, who died in 2005 without having retired.15
Justice Marshall became dependent on the other Justices as he lost his hearing and began making mistakes in his work such as forgetting which attorney was representing which party during the oral argument for Fed. Trade Comm’n v. Superior Ct. Trial Law. Ass’n.16
Justice Rehnquist17 began slurring his words more often, and had such awkward, lengthy pauses as he struggled to form his words that the other Justices sometimes finished his questions for him.18
It has been reported that law clerks picked up much of the slack left at times by Justices Brennan, Marshall, and also Harry Blackmun during each of their terms that spanned thirty-four, twenty-four, and twenty-four years, respectively.19
These elongated tenures stand in stark contrast to the brief stints many of the first Supreme Court Justices served. The first ten Justices served on average for fewer than eight years, and three of them left the Court to take other positions.20
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.21 George Washington famously stepped down after the second term of his presidency.22 Similarly, the first Chief Justice of the United States, John Jay, resigned after being elected Governor of New York.23 Chief Justice John Roberts had even expressed a similar sentiment in 1983 while working as an attorney in the White House.24
Additionally, the job was simply less attractive in the past than it is now. At its outset, the Supreme Court was a relatively weak body.25 Marbury v. Madison is largely credited with establishing judicial review in 1803,26 meaning that the Court operated for years without it being apparent that judicial review was necessarily a part of the Court’s mandate. However, it was long understood that Justices would be responsible for rigorous circuit riding, a practice not eliminated until 1911, which required traversing the expansive nation without the advent of modern modes of transportation.27
I. Regularization of the Supreme Court Appointments
Limiting tenures and regularizing appointments would work to reduce the arbitrariness and political strategizing that has come to define Supreme Court vacancies. The first change, limiting tenure, changes the calculus of Justices by removing the strategic political thinking that currently influences Justices’ retirement considerations. The second change, regularizing the nominations process, would abrogate the arbitrariness and gamesmanship surrounding the process by which Justices are currently nominated and confirmed.
A. Independent or Anti-Democratic?
The judiciary faces the least democratic accountability of the three branches of government. Since the drafting of the Constitution, the democratic responsiveness of the other two branches has grown. While Congress and the Executive maintain anti-democratic elements, notably the electoral college for the presidency and the overrepresentation of small states in the Senate, they have each made strides toward democratization. Most Americans can now cast ballots, and senators are elected directly by voters in the states they represent. The judiciary has undergone no such similar reform.
The power of unelected judges does not comfortably fit within the common conception of a democracy. Academics have long waged this debate; the “counter-majoritarian difficulty,” posited by Alexander Bickel in 1962, questions the power of unelected jurors to counter elected legislators.28 The debate has evolved over the years, as liberals saw the Warren Court as an ally but came to see the Rehnquist Court as an enemy.29
Many would argue that the judiciary should not be directly responsive to the public. In The Federalist No. 78, for example, Alexander Hamilton argues that if judicial appointments rested directly with the people, “there would be too great a disposition to consult popularity.”30
Life tenure, however, rather than providing for an independent judiciary as the Framers envisioned, has created an anti-democratic institution. And because the institution need not regularly respond to the will of the people, it has become the greatest prize in partisan politics.
Term limits thread the proverbial needle. By providing long terms, we are assured of Justices’ independence from partisan influence. But by regularizing appointments, the Court remains tethered to the democratic process.
B. Arbitrary Nominations and Political Gamesmanship
Ending life tenure would mean the end to the arbitrary nature of Supreme Court nominations and confirmations. In the current system of life tenure, judicial openings are dictated either by the human mortality or political calculation of the Justices.31
A quick look at the numbers reveals the uneven impact that life tenure has on presidents from different political parties. Over the past forty-four years, Democratic presidents have been in office for twenty years and have appointed four Justices. Republican presidents have been in office for twenty-four years and have appointed ten or eleven Justices.
Politically motivated retirements are a common problem. Nearly two-thirds of resigning Justices retired when a president of the same party was in office, while fifty-nine percent of Justices who died in office died during the term of a President of the opposing party.32 Take as recent examples, the retirement of Justice Anthony Kennedy during the Trump administration and the deaths of Justices Antonin Scalia and Ruth Bader Ginsburg during the Obama and Trump administrations, respectively.33
II. Overcoming Obstacles to Reform
A. Constitutional Considerations
A reoccurring concern regarding proposals to set term limits for the Supreme Court by statute remains the Constitution itself—or to be more accurate, the widely held belief that the current system of life tenure is required by the Constitution’s text. In establishing the Supreme Court, the Constitution states that the Justices “shall hold their Offices during good Behaviour . . . .”34 Many people, including scholars and commentators, assume that this requires life tenure, with impeachment the only possible way other than death a Justice could be removed.35 But “[e]quating good-behavior tenure with ‘life tenure’ subject to removal only via impeachment is a mistake.”36
While it could be argued that, “in the absence of qualifying language” specifying a term of years, the founding-era understanding was that good-behavior tenure was tenure for life,37 it could also be understood only as imposing a limit on the reasons a judge or Justice could be removed before the end of an unspecified period. While Congress cannot repudiate constitutional terms by statute, it can bring clarity to the interpretation of its generalities.
That “good behavior” and “life tenure” are synonymous is assumed by many scholars but is far from certain. In The Federalist No. 78, Alexander Hamilton justified the grant of good-behavior tenure while referring to the Supreme Court as “the least dangerous” of the branches of the new federal government.38 But the changed role of the Court over time has undermined Hamilton’s argument, most notably how much more powerful today’s Court is than the Court of the founding era.39
Importantly for constitutional purposes, Supreme Court term limits proposals would apply prospectively, exempting Justices serving at the time of enactment.40 No Justice appointed before the law is enacted would have the term of their service retroactively altered, and no Justice appointed after such a law is enacted would be deprived of the ability to serve “during good Behaviour” for a determinate period of years before being required to take senior status.
In fact, non-life-tenured judges already exist within the federal judiciary, offering support for such a plan. Just as magistrate judges, established by statute, are able to wield the judicial power,41 “Article III [of the Constitution] could similarly be reinterpreted to require guaranteed terms” that are fixed by statute.42 The “powerful precedent” of senior status for lower federal judges could be extended to the Justices of the Supreme Court without raising constitutional concerns.43
B. A Supreme Final Period Problem?
Some critics worry that term limits for Supreme Court Justices would create a “final period problem”—a situation where Justices are incentivized to rule in their self-interest during the final portion of their judicial term—without acknowledging the reality of the similar “final period problem” that life tenure creates.44
These concerns can largely be categorized into three major topics: partisan decision-making, legacy creation, and collegiality.45
First, critics suggest that Justices will rule in partisan ways to be more appealing to future employers.46 But this suggestion assumes that Justices would not otherwise be exceedingly employable after their tenure on the Court regardless of their rulings, and assumes that Justices are not making partisan decisions under pressure from Congress, the President, and other entities that the Justice may benefit from politically or economically.
Second, critics assert that Justices will spend the last year of their term focused on creating a legacy rather than in coming to the best ruling.47 But this assertion, questionably, assumes either that Justices do not already focus on crafting a legacy in the period before their retirement or death or that a legacy making motivation would detract from a justice’s jurisprudence.
Third, critics opine that term limits may result in less collegiality on the Court because Justices would know that they would only be working with each other for a couple of years.48 But one could also argue the opposite effect: interminable tenures result in less collegiality on the Court because Justices know that they will work with each other for years to come regardless of their behavior. It is also not self-evident that collegiality on the bench serves the public good.
Moreover, voiced concerns about the possibility of creating a “final period problem” often ignore the already existing final period problem— that Justices either time their retirement based on partisan factors or work well past their capacity to avoid retiring completely.
C. More Frequent Confirmation Battles, But Lower Stakes
Other critics suggest that establishing term limits would result in more frequent high-octane confirmation battles like those of Merrick Garland, Brett Kavanaugh, and Amy Coney Barrett. But that ignores the history of confirmation battles and fails to take into consideration how a predetermined term of service, and the guarantee of subsequent appointments in the near future, would lessen the consequences of any one appointment.
Before 1970, a new Justice rotated in about every two years.49 After 1970, new Justices have joined the Court sporadically, with a new Justice rotating in on average more than once every three years.50 Gaps between new vacancies can be anywhere from a couple of months to eleven years.51
For example, Jimmy Carter got no nominations to the Court during the four years of his presidency, while Nixon filled four seats during the five-and-a-half years of his presidency.52
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. Two-year staggered term limits would mirror the average two-year rotation of judges common until 1970s rather than the undemocratic and inefficient random gaps in vacancies present today. Both aspects of the reform would reinstate limitations that act as a consistent, routine democratic check to keep the Court accountable to its constituents and that could take some of the fire out of confirmation hearing battles.53
Conclusion
Just because this is the current situation at the Supreme Court—life tenure with unchecked power—does not mean it will always be the situation at the Supreme Court. A standardized appointment process, already a popular reform, has picked up momentum of late in the halls of Congress.
U.S. Representatives Ro Khanna (D-Cal.), Don Beyer (D-Va.), and Joe Kennedy III (D-Mass.) introduced the Supreme Court Term Limits and Regular Appointments Act on September 29, 2020.54 The bill would, upon enactment, limit future Justices to eighteen years—the current eight would be exempt—and would create a senior status for retired Justices; in case of sudden vacancy, they could return for a time to fill out the bench. The bill was reintroduced by U.S. Representatives Ro Khanna (D-Cal.), Don Beyer (D-Va.), Barbara Lee (D-Cal.), and Rashida Tlaib (D-Mich.) on August 31, 2021.55
The stakes for each appointment would be lower. The power of each Justice would be reduced. And every President would receive two appointments per presidential term.
The bill was actually drafted in the summer of 2019 but was put on hold because last September, the House began the impeachment process, with COVID-19 soon to follow. Our Capitol Hill sources tell us that all the current vacancy did was move the introduction date of the bill up two weeks.
Whether there’s a vacancy now or in the future, whether it’s a forty- 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.