Reviews | Supreme Court reform that could actually win bipartisan support

Since Section 3 of the Constitution grants lifetime tenure to all federal judges, term limits would likely require a constitutional amendment. Yes, constitutional amendments are difficult to pass. We haven’t changed our Constitution since 1992, and we’ve only done so once in the past half-century. But there are reasons – even in these politically polarized times – to believe that constitutional reform is possible.

To begin with, multiple voices from all ideological persuasions endorsed the concept of term limits for Supreme Court justices. An early proponent of the concept was Northwestern professor Steven Calabresi, one of the co-founders of the conservative Federalist Society. Other scholars of all persuasions — from conservative luminary Michael McConnell (a former federal judge and my colleague at Stanford) to Erwin Chemerinsky, a leading liberal and dean of Berkeley Law School — have since joined the chorus. Various think tanks and their researchers — from Norm Ornstein of the American Enterprise Institute to Ilya Shapiro, now of the Manhattan Institute, to the Center for American Progress — have also backed the idea. And three judges themselves – Chief Justice Roberts, Justice Elena Kagan and former Justice Stephen Breyer – have suggested at various times in their careers that they see potential benefits in the idea.

What’s more, nearly every state in the union imposes term limits on state Supreme Court justices, a mandatory retirement age, or both. Only Rhode Island has a lifetime tenure system similar to the federal model. It should come as no surprise, then, that when the National Constitution Center held an exercise in 2020 to draft new constitutions, both conservative and progressive teams adopted 18-year limits.

A preference for term limits also prevails beyond our shores. Most constitutional democracies impose term limits, and other major democracies (such as the United Kingdom) impose age limits. The United States, in fact, is the only great constitutional democracy in the world to impose neither term limits nor age limits.

Of course, our federal government is different in some ways from state governments, and American exceptionalism is sometimes justified. But here, all the signs suggest that our lifetime tenure system for Supreme Court justices is, at best, an outdated relic of times past. In the first 200 years of our history, judges served an average of 15 years on the court. Since 1970, the average tenure has almost doubled. Judges appointed today who are in their 40s or early 50s can be expected to serve 30 to 40 years or more. In this sense, the proposed “reform” of the 18-year term limit is, in the words of a law review article by Calabresi and co-author James Lindgren, “ultimately a very Burkean and conservative because all [it] would do is bring judges back to an average term similar to what the average term for judges has been over all of American history.

This restoration of normality would only be the beginning of the reverse of term limits. Such limits would also make Supreme Court appointments less random and more closely tied to election results. (If we had term limits today, our court would consist of one Biden appointee, two Trump appointees, four Obama appointees, and one Bush appointee.) There is no inherent good served when one president gets no nominations and the next one gets several. Nor is there any discernible benefit to judges serving more than two decades, increasingly removed from the commercial and cultural vibes of our nation. Eighteen years is plenty of time to settle into the role and wield the power of a Supreme Court justice.

Indeed, term limits would increase the chances that judges will sit in court when we expect them to perform at their peak, that is, the optimal mix of experience, wisdom and mental acuity. Why would we want to maintain a system that incentivizes presidents to nominate ever younger candidates? Under a term limit system, the public would probably expect judges to be appointed in their late 50s or early 60s and serve until they are 70.

Finally, and perhaps most importantly, there is good reason to believe that term limits would reduce the political incentives (not to mention rancor) surrounding retirements, appointments, and the confirmation process. When justices are seen – rightly or not – as trying to plan their retirements so that the presidents of certain parties can replace them, the public cannot help but think that voting habits on the Supreme Court must be related to policy and not to law. By establishing known limits on the terms of judges, we could reinvigorate an apolitical sentiment in the comings and goings of judges.

Similarly, a system in which election to the presidency automatically results in two Supreme Court appointments would make those appointments less important — and, therefore, less amenable to extreme political machinations. Arguments, for example, that confirmation of any new justice should wait for the next election should be political failures.

Certainly, as long as the Senate retains its constitutional role of “advice and consent,” it will apparently retain the power to simply block any presidential candidate it does not like. One would hope that the public, under a system of regularized term limits, would not support any exercise of such crude political authority. But if such a practice were to develop (or if there was enough reason in advance to think that it would), another constitutional adjustment might be in order.

Skeptics of term limits raised a few other concerns. First, they argue that increased court turnover (compared to past decades) will lead to less stable law. But the reverse seems equally likely: a constant flow of judges who are new to the institution could generate more deference to the institution itself. Putting aside the conservative movement to overrule Roe vs. Wade, new judges are historically more willing to accept precedent as they find it. Moreover, if reform does indeed produce appointees somewhat older than those of recent years, the greater seasoning that often accompanies age would likely produce judges in future years with more measured and less revolutionary views.

There are also concerns that judges subject to a term limit system may become less independent because they may serve for a professional career beyond their service in the Supreme Court. Again, age is a mitigating factor here. If judges are not appointed until their late 50s or 60s, serious post-judicial careers seem unlikely.

Finally, one can reasonably ask why in the world we should favor a system that would result in After validation hearings. Have we learned nothing, one might ask, from recent history? In response, I will end where I started. The interest of term limits would be to regularize the appointment and confirmation process; make appointments of new judges less conspicuous; and generally to lower the temperature towards the court and its staff. Reform would not be a panacea. But it would curb our worst instincts and tendencies that have developed in this area. And that can only benefit the American people and the rule of law.

The authors expected their grand structural design to be adjusted as our democracy and standards evolved. Such adjustments have proven to be a vital means of sustaining our republic. The original Constitution, for example, called on state legislatures to select U.S. senators. In 1913, however, we amended the Constitution to give the people the right to directly elect their senators, having learned that legislative selection was subject to deadlock (and therefore extended vacancies) and capture by special interests. . In 1951, we capped the number of terms the president can serve at two, recognizing that periodic rotation at the top of the executive better served our country.

It is high time to deal with our third branch, that is to change the rules governing the tenure of Supreme Court justices. The continued health of our tripartite form of government may depend on it.

Portions of this essay are drawn from a module written as part of the Practitioners’ Committee report to the President’s Commission on the Supreme Court. Professor Fisher was a member of this committee.


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