OPINION: Time for Supreme Court ‘term limits’

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Civic Action

Between ethics scandals, political polarization, and partisan confirmation battles, the Supreme Court has become unmoored from democratic accountability, as public trust in the Court hits historical lows. But there is a solution favored by a supermajority of Americans in dozens of polls since 2014, including majorities of Democrats, Independents, and Republicans: term limits for Supreme Court justices.

One approach, as outlined in an influential 2023 paper by the Brennan Center for Justice, is to establish staggered 18-year terms, with scheduled vacancies every two years, at the start of each two-year Congressional cycle. This would result in exactly two appointments per presidential term: no more, no less.

To be clear, in accordance with Article III of the Constitution, justices would still serve lifetime terms “during good behavior.” However, their terms would be structured such that, after 18 years of “Active Justice” status, they would enter the “Senior Justice” phase, hearing lower court cases for district courts and the court of appeals and filling in temporary vacancies on the Supreme Court as needed. These reforms could all be accomplished via Congressional legislation.

Today’s justices are serving longer terms than ever in history, with the average term on the bench more than 10 years longer than it was up until the 1960s. Some justices serve for as many as nine presidential terms, placing them in an unaccountable bubble with undue influence over multiple generations, and leading to extreme partisanship and disincentive to compromise in the confirmation process.

We need only look at the disastrous differences between Merrick Garland, nominated by Barack Obama in 2016, whom Senate Majority Leader Mitch McConnell refused to even meet with, much less grant a floor vote, and Amy Coney Barrett, confirmed in 2020 at breakneck speed when Ruth Bader Ginsburg died only 45 days before the election. Leader McConnell has done as much as any one person to break the legitimacy of the court.

Presidential terms vary wildly in their opportunities to shape the court. Trump appointed three justices in his four years in office, whereas Clinton, George W. Bush, and Obama appointed only two justices each over their eight-year terms. By limiting active service on the Supreme Court to 18 years, each presidential term would have equal impact on the court.

Unexpected vacancies would not destabilize the court, as they’d be permanently filled at the two-year mark, with the most recent Senior Justice filling in until then. Current justices would be grandfathered in, with their 18-year terms starting at once, resulting in more than nine justices temporarily until all current justices have retired. “Fast-track” legislation could require that every nominee receive a floor vote within a certain period of time so no nominee is allowed to simply dangle indefinitely by a partisan Senate Majority Leader. 

Term limits would solve the problems posed by “strategic retirements,” where justices try to time their retirements to be filled by ideological counterparts. Among the current justices, John Roberts is the only one who received more than 50 percent “yes” votes from senators of the opposing party. As we have seen in recent years, when justices are seen as extensions of their political party, confirmation battles become magnets for dark money.

Eighteen-year terms are consistent with the 234-year history of the court: two openings per presidential term has been the mean, median, and mode since its founding in 1790. Bringing in more fresh voices will mean more diverse representation. All but one current justice attended Harvard or Yale Law, Justice Jackson is the only former public defender on the court, and there has never been an Asian, Indigenous, or openly LGBTQ+ justice. 

Tell Congress: Let’s establish term limits for the Supreme Court with a predictable appointment schedule.

Thank you for helping to bring greater fairness and balance to the Supreme Court with reforms that have strong bipartisan support.

(Robert Bernard Reich is an American professor, author, lawyer, and political commentator. He worked in the administrations of presidents Gerald Ford and Jimmy Carter, and served as Secretary of Labor from 1993 to 1997 in the cabinet of President Bill Clinton.)

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