Exploring Term Limits for Supreme Court Justices

Introduction/Defining the Problem:

Currently, Supreme Court of the United States (SCOTUS) justices serve lifetime appointments that inevitably extend until they retire or die. They are appointed by whomever is in the office of the President of the United States at the time of a vacancy, are confirmed through the Senate by simple majority, and are subsequently given one of the most secure and important positions in the entire United States government. The role of Supreme Court Justice is designated to decide on issues of high importance in order to set legal precedence such as historical landmark legal cases including Marbury V. Madison, Dredd Scott V. Sanford, Brown V. The Board of Education, Gideon V. Wainwright, Roe V. Wade, and countless other critical decisions surrounding important matters such as civil and human rights, as well as fundamental constitutional questions. They are also tasked with conducting judicial review, that is, reviewing passed legislation to determine its constitutional legality.  This institution’s nonpartisanship, integrity, objectivity, and high intellectual and moral standing is crucial to our commitment to, and our functioning as a representative democracy and to upholding core American ideals including fairness, equality, and freedom and justice for all. But this institution has recently come under scrutiny due to controversial decisions, lack of equality in presidential appointments, lack of transparency in legal processes, ethics complaints, a perceived lack independence and integrity as a neutral, apolitical branch of government and has been accused of fundamentally straying from its original purpose and superseding the limitations laid out in the constitution, mainly regarding separation of powers. 

The main reason for these developments can be attributed to increased politicization of the courts and a more general increased polarization of our nation’s politics. Controlling the courts is a critical component of controlling the country’s law-making, enforcement and maintaining or changing already established legal precedence and already-determined constitutional questions as we have seen with the overturning of Roe V. Wade in 2022. It is also a major factor in determining the rules of the playing field of the political process itself, deciding on cases such as Citizens United V. FEC which gave corporations the right to unlimited spending on elections and the upcoming case decision regarding Moore V. Harper, which will give state legislatures the right to re-draw congressional districts any way they see fit. As the political parties have become more diametrically opposed, control of the courts has become more desirable for the political parties and those of opposing political ideologies.

One solution to combat these to combat these issues, being set out and pursued by policymakers and influencers is the decision to set term limits on the years that Supreme Court Justices can serve. Proponents argue that this change will equal the playing field and provide a more equal opportunity for presidents to appoint the same number of Justices as their predecessors, mitigate political tactics by Justices or politicians that would seek to use underhanded methods to stack or manipulate the courts for political gain, re-establish the courts as an independent entity, and would allow for more diverse and potentially younger legal minds to inhabit the seats of Supreme Court Justices. This would decrease the likelihood of ethical violations due to less job security, more accountability, and would encourage Justices to serve in their roles solely due not to politics, but due to their want to effectively interpret the law, carry out justice and fulfill their duties to their best ability. While there are valid problems with this policy change that opponents of it bring up that I will mention in this analysis, I assert that the pros outweigh the cons and that this change should be made by congress through statutory legislation.

Argument/Evidence:

One of the main motivations to pass this legislation is due to SCOTUS Justices having too much job security, too little accountability, and having the potential to become out of touch with national needs and the country’s evolving identity and culture. Recent ethics complaints have surrounded Supreme Court Justices Thomas and Kavanaugh, both having faced accusations of sexual assault, and Thomas recently being discovered of having accepted gifts from a wealthy and active republican donor while refraining from disclosing it in financial forms required by federal law. Unfortunately, impeachment is a slim possibility for bad behavior on the Supreme Court, as only one SCOTUS justice has ever been impeached since the founding of the Court in 1789, this being Associate Justice Samuel Chase in 1805, and even in this case Justice Chase was acquitted and the impeachment was voted down by the Senate. In a democratic country such as ours, this is unacceptable and supports claims that the Court has lost credibility and that reform is needed.

On average, a SCOTUS Justices tenure is about 16 years, less than the most popular proposal for the length of a limited Supreme Court Justice term at 18 years. However, since the 1970s, SCOTUS justices’ average tenure has risen by 11 years to an average of almost 28 years, giving more credence to the idea of term limits. Additionally, the average lifespan for a Supreme Court Justice in the time of the Court’s inception in 1789 was around 67 years. It has now risen to over 82 years, explaining the extension in average tenure. For added context, the longest tenured SCOTUS Justice was Chief Justice John Marshall, who served 34 years and 5 months from 1801-1835. As Justice Marshall’s tenure was well before the sharp increase in average life expectancy for SCOTUS justices, I view this as an anomaly credited to Marshall’s great importance, prestige, and contribution to the early establishment and effectiveness to the functioning and norms of the Supreme Court.

 In recent years, SCOTUS has also seen its workload fall substantially. In 1980 the Supreme Court heard around 150 cases a year, in 2014 the SCOTUS heard around 71, and in the latest 2021-2022 term the SCOTUS heard just 68 cases.[1] Scholars point to many different reasons such as the willingness of the new justices to take on cases, as a case to be heard by SCOTUS needs 4 votes by the 9-member court; or that congress is not passing confusing laws, the Justice Department not appealing as often or some other reason, but most conclude that this development is due to the little amount of cases taken on by the 4 justices appointed around the mid-eighties, these being Scalia, Kennedy, Souter, and Thomas, and Ruth Bader Ginsburg. Experts have accredited this to a “reluctance” to take on issues that may not be able to provide a clear answer and lead to deadlocks. Regardless of the reason however, the lessened workload only serves to further establish the invulnerability and ability to neglect responsibility that the Justices control and the absurdity of allowing individuals control this power for their entire lives.

Finally, SCOTUS Justice appointments have been becoming increasingly politicized. Due to the nature of their attainment of the position, through presidential appointment and Senate confirmation, tactics and strategies can be employed by Justices and politicians in Washington to ensure the ideological alignment of their party and the new SCOTUS appointee. Justices are able to wait to retire until a president of their political preference is in office so that they may appoint their replacement which is a fundamental violation of our separation of powers and the presidential power of Supreme Court appointment.

Blatant hypocrisy from the republican party has also propagated into the process with claims that appointments close to election season should be left for the next president. This was seen in 2016, when the nation witnessed Merrick Garland blocked from appointment to SCOTUS due to claims from Senate Republicans that “the American people should have a say in the court’s direction.” Unfortunately, the nation was able to witness the hypocrisy of this statement 4 years later in October of 2020 when Amy Comey Barret was appointed to the Supreme Court in an election year to outrage of democrats and scholars who had been opponents of Republican reasoning in the Merrick Garland appointment process.

Term Limit Policy Details:

All this is to say, the Supreme Court of the United States is in need of reform. The details of the proposed term limits are relatively simple and are widely agreed upon. 18-year term limits are the consensus. This is because every new justice would be added every other year with a year gap in between giving a president the potential for 2 or 4 appointments, 1 during his first year in office and another during his third year. This would alleviate the stressful, chaotic, and in many ways inhumane process of waiting for a supreme court justice to die in order to confirm the possibility of appointing another favorable justice. It would not however, stop senate appointment blocks from occurring, nor would it make the appointment process less political. However, it also would not make the appointment process more political. Opponents state that this change would increase the dependence of the court, but there would be no reason for Supreme Court justices to act politically in any form or capacity. They will be given 18 years to serve in their role and will have no incentive beyond securing work after their term to serve any political interests beyond their own unique perspective and legal expertise.

In addition to the 18-year term, former Justices will also be allowed to inherit a senior justice role, which will allow them to continue fulfilling judicial duties and will allow them to fill unexpected vacancies such as an unexpected retirement, death, or illness.

This bill can be passed through congressional statute and a bill proposing the exact policy measures stated in this analysis was introduced by Representative Ro Khanna (D-CA-17) in September of 2020 in the House Judiciary Committee but did not have the necessary votes to make it out.[2]

Conclusion:

Increased politicization of our functioning governmental institutions sets a dangerous precedent moving forward. Bodies that are meant to remain independent of political influence and interference are becoming increasingly tainted with the polarization of our modern American society and this development has seeped into our Supreme Court. While this solution does not fix the whole problem, I will assert that it does not attempt to as the goal of this policy measure is to instill democracy into our archaic Supreme Court. We are a country that does not tolerate absolute rule by any elected official in the legislative branch, nor do we allow domination from any appointed official in the executive branch. Why then, do we tolerate such invulnerability and control of power from our Supreme Court Judiciaries, who have historically made such influential decisions on American life and are continuing to do so? This policy creates a restriction of power, and a limitation of motivation to act politically, and an opportunity for a fairer spread of input into who are making our most important legal decisions in America.

[1] Ollie. “The Supreme Court’s Caseload Is on Track to Be the Lightest in 70 Years.” FiveThirtyEight, 17 May 2016, fivethirtyeight.com/features/the-supreme-courts-caseload-is-on-track-to-be-the-lightest-in-70-years/.

[2] "H.R.8424 - 116th Congress (2019-2020): Supreme Court Term Limits and Regular Appointments Act of 2020." Congress.gov, Library of Congress, 29 September 2020, https://www.congress.gov/bill/116th-congress/house-bill/8424.