What does Fix the Court know that the founders of our country did not?
Because life expectancy was much lower back in the 18th century – and because leaders who did live long lives, like George Washington, retired after a reasonable amount of time in public service – it’s likely the founders did not imagine justices would hold their offices for three-plus decades, into their late 80s or 90s.
It’s no coincidence that every democracy created in the last 100 years places a term limit or a mandatory retirement age on its top judges, and nearly every U.S. state judiciary from blue California to red Alabama does, as well.
Recall that justices in previous centuries had to “ride circuit” to check in on, and hear cases in, other federal courts. These trips, generally undertaken on horseback or via carriage, were treacherous and led to the early retirements for many 19th century jurists, often due to health issues contracted on the road. Times have changed, and term limits would restore the limitations previously imposed by life expectancy and health.
What’s more, we have seen the process of life tenure fail American democracy time and time again. Instead of serving reasonable terms of a decade or even two, justices are now holding on to their seats for 30 or 35 years, waiting for a president with whom they share an ideology to occupy the White House, before they retire.
In ways the founders could never have envisioned, confirmation hearings are a national embarrassment for both parties, with justices more ideological than ever before. A Senate majority is incentivized to hold a vacant seat open for as long as it can if the president happens to be of the opposite party. None of these circumstances was envisioned by the founders, and modern times call for a more modern court.
Are term limits actually achievable right now? How?
Yes. Congress could pass a law right now that says the next justice confirmed to the Supreme Court would only serve as a justice on the court for 18 years. The country should not have to wait until there’s another crisis at the high court, or another Fortas-, Bork- or Kavanaugh-like confirmation process, for this popular, commonsense proposal to be enacted.
What’s more, the next nominee could herself commit to serving only 18 years, thus starting a tradition or unofficial policy. That would be something.
Doesn’t this have to be a constitutional amendment?
No. All of this could be accomplished via legislation. Here’s how: the Campaign for Supreme Court Term Limits does not want to take constitutionally enshrined life tenure on the federal bench away from Supreme Court justices. We merely want to end life tenure for serving specifically on the Supreme Court. After 18 years, all justices under our plan would remain life-tenured federal judges; at that time, they would simply rotate off the high court but could serve on a circuit court – or fill in at the Supreme Court if called upon due to a death or resignation.
What’s the reasoning behind 18 years? How would the terms be staggered?
Eighteen years is a long enough time to remove the individual justices from day-to-day political considerations and allow them to have an impact on American jurisprudence, while still short enough to ensure regular changes to the court and justices that are not too isolated from larger society. Nine justices serving 18-year terms would mean that every two years, one justice rotates off and is replaced. That would mean each presidential term would see two justices leave the court and be replaced; this is preferable to limiting each presidential term to just one SCOTUS appointment, as that would result in justices serving a 36-year term – essentially life tenure.
Can a SCOTUS justice be appointed to two separate 18-year terms under your proposal?
No, as that would defeat the purpose of trying to prevent justices from serving on the court for too long, and could further insert justices into politics. Even though presidents are today incentivized to nominate someone young (to maximize their time on the court), no justice has ever served for 36 years.
Under a system of single 18-year terms, youth would be deemphasized as a leading factor to look for in a nominee, which means we would likely see more experienced individuals nominated. This, in turn, would make it less likely a second president would even want to renominate the same individual if they could, as longevity would no longer be a consideration.
Won’t justices have potential conflicts if they know they are leaving the court in 18 years and financial opportunities await?
Today, without term limits, any Supreme Court justice has the opportunity to leave his or her seat at any time. Therefore, current justices face the same potential conflicts and opportunities as would a justice who is term-limited after 18 years.
It’s also important to remember that justices need three colleagues’ votes to get a case granted, and four colleagues’ votes to win the majority. It makes is far less likely that the attempts of one justice to “grease the wheels” would be successful.
Further, justices are currently relied upon to exercise their discretion and recuse themselves when they or their family may have conflicts. This would be the same process of trust but with the added safeguard that no justice would be on the court (and even in a position to violate the national trust) for more than 18 years.
Would current justices be subjected to term limits if it passes?
No. Current justices would serve for life, and new colleagues that were confirmed after the passage of term limits legislation would serve for 18 years apiece. The only way to limit the terms of the current nine would be via constitutional amendment, which we do not see as likely. We believe that the current nine should be left to serve in the job as it was presented to them when they were confirmed.
Critics say this proposal is part of Democratic efforts to grab back power they’ve lost by losing elections. How do you respond?
Proposals to end life tenure at the Supreme Court have existed since the 18th century, and serious ones in modern times have existed since at least 1954, when a large majority in the Senate voted in favor of a resolution that justices should no longer serve past their 75th birthdays. It is also the policy of high courts in 49 out of 50 states in this nation.
Since then, numerous proposals to end life tenure have percolated in academic circles, most notably in a 2005 law review article by Profs. Steve Calabresi and James Lindgren titled, “Term Limits for the Supreme Court: Life Tenure Reconsidered.” (Calabresi co-founded the Federalist Society.) In the decade that followed, various legal scholars and law professors described in articles their own versions of a term limit for the Supreme Court, and most coalesced around the plan that Fix the Court adopted in 2016: justices serving a single, non-renewable term of 18 years, with a new justice being added to the court every other year.
It should also be noted that this concept has been supported by numerous public officials from both the Democratic and Republican parties, including Rand Paul, Rick Perry, Ted Cruz, Ben Carson, and Mike Huckabee (to name a few).
Why is court-packing not the best solution?
While term limits would be an enduring, uniformly applied structural reform, court-packing is a short-term, stop-gap measure that would not fix the systemic problems of rising partisanship and seemingly endless tenures at the high court. Court-packing would temporarily recalibrate the ideological makeup of the Supreme Court, but would not be a long-term solution to the partisan gamesmanship of seating, or blocking, nominees.
In that regard, court-packing would only exacerbate the problem of extreme politicization as you could be sure the Republicans would answer Democratic court-packing in kind. All of this would only undermine the independence of the judiciary.