Saving the Court: Term Limits

Bypass surgery for an elderly constitution

Photo by Stephen C. T. Andrews on Pexels

Today’s Supreme Court gets little respect. That lack of respect lessens its ability to hold the country together. The Court serves as final arbiter of the law, and we live by its decisions, however much we disagree with them. Abiding by those decisions can be forced, but only to a limited extent. True stability in the country requires widespread recognition of the Court’s legitimacy. Weakened respect for it weakens the country.

As I wrote last time, two factors have eroded that respect: First, an activist Court, eager to overturn decisions they disagree with and to forge dramatic new law. Secondly, a process for appointing new Justices that has become thoroughly politicized. The present Court is seen (inaccurately but inevitably) as an arm of the GOP.

What would help?

Many believe, and I agree, that term limits would help.

The details of proposed limits matter, something Michigan learned the hard way. Its term limits are too short, and have accomplished nothing they were meant to. The bill introduced last year by Sheldon Whitehouse and three other senators is far more thought out. At its core are staggered 18-year appointments. Here’s how it would work:

The justices would serve staggered 18 year terms

One new justice would join the Court every two years and another, having served for 18 years, would retire. The composition of the Court would constantly but gradually change. Each president would name two justices during a four-year term.

The transition from our present system to the new one is tricky. The senators’ bill proposes that justices now on the Court would serve the lifetime terms they were appointed to. Nevertheless, the new system would begin immediately. So, until the last of the present justices leaves, the number of active justices would temporarily increase, then gradually return to nine, where it would stay.

Is the proposed change constitutional?

The Constitution says Supreme Court justices will “hold their office during good behavior,” which is usually taken to mean “serve for life unless impeached.” To accord with that provision, justices at the end of their 18 years would still hold office, but as senior justices. (There are senior justices everywhere else in the federal judiciary.)

Senior justices would no longer decide appellate cases — those that confirm or overturn what lower courts have decided. All the headline cases fall into this category. Senior justices would deal with other parts of the Court’s work, including a narrow set of cases that are not appellate. Senior justices would also fill in when death or retirement create unexpected vacancy on the active bench.  

After 18 years, justices would hold office as semi-retired senior justices.

Supporters argue that this arrangement meets the Constitution’s “holding office” provision, since the justices would do so for life, but with diminished power after 18 years.

What difference would this proposal make?

Term limits won’t end the politicization of the Court. Each nominee would face the same gauntlet that is now routine. Presidential campaigns would continue to highlight implications for the Court. But the attention would be constant and equal. (In contrast, the 2024 campaign is not focusing on the Court, because its ideological tilt will be unchanged for decades, no matter who becomes President.)

By the same token, the new system would give each administration equal power over nominees. Chance and congressional gamesmanship allowed Trump to appoint three justices in his four years in office, while Obama and George W. Bush each appointed only two, despite their eight years in office. One new justice every two years would even out the power to appoint.

That leveling should lessen the sense of unfairness now felt toward the make-up of the Court, and make space for respect.

Age would no longer figure into the choice of nominees, because even a 45-year old will serve only 18 years. Justices would no longer time their retirements so that a friendly president can nominate their successor. Retirements would instead be scheduled, and premature vacancies filled temporarily by one of the senior judges.

The nomination process would be somewhat improved. As things stand now, every Senate majority leader will follow Mitch McConnell in stonewalling nominees from the other party. The senators’ bill forbids that: The Senate would be required to hold hearings within 120 days, or lose its power to advise and consent.

The Court’s makeup would be refreshed every two years.

The most significant result is that the Court would be refreshed every two years, with one justice leaving and another joining. The public will no longer feel trapped for decades under an unfriendly Court, formed through chance and political machinations. Voting blocs among the justices would gradually reshape.

More is needed

Some patients need only a single bypass surgery. The Supreme Court needs a triple.  First, term limits. Secondly, an ethics code. All lower courts have one. Finally, and most fundamentally, it needs to reflect the ideological diversity of the country.

For that connection to happen, it would help to have more than two parties with power in the Senate. If confirming a nominee requires consent from more than one party, coalitions and compromise would produce a more varied set of justices.

The road to more significant third parties is long. It starts with the states, and, I believe, with ranked choice voting. I’ll make that argument another day. 

For now, term limits for the Supreme Court would restore hope and lessen resentment. These in turn would create room for respect, helping restore the Court to its role as a stabilizing force.