An “Ideal Constitution” Includes SCOTUS Term Limits, Say Progressive and Conservative Scholars

By Amanda Dworkin, FTC law clerk 

When asked by the National Constitution Center how they would revise the U.S. Constitution, a team of progressive scholars and a team of conservative scholars both stated that they would add term limits for Supreme Court justices.

More specifically, both teams of scholars would codify the 18-year, staggered terms recommended by Fix the Court and reflected in the text of the recently introduced Supreme Court Term Limits and Regular Appointments Act (H.R. 8424).

Team progressive—lead by Caroline Fredrickson of Georgetown Law School, Jamal Greene of Columbia Law School, and Melissa Murray of NYU School of Law—emphasized that term limits would create a less partisan bench:

“[I]n order to ensure a less partisan judiciary that is and is perceived as neutral and unbiased, this draft dispenses with life tenure for federal judges in favor of single 18-year terms. Eliminating life tenure would accord with the approach taken by all other democracies.”

Team conservative—lead by Robert P. George of Princeton University, Michael McConnell of Stanford Law School, Colleen Sheehan of Arizona State University, and Ilan Wurman of Arizona State University College of Law—highlighted how term limits would minimize the randomness of Supreme Court confirmations and reduce political gamesmanship by the justices:

“The selection of Justices of the Supreme Court should be made less political and arbitrary. Lifetime tenure for Justices has become a serious problem. Some Justices remain in office longer than they should, and many make tactical retirement decisions to ensure replacements from the same political party. The outcome is that one President may have the opportunity to appoint a significant number of Supreme Court Justices, and others might not appoint any. […] We therefore propose—as have other academics—eighteen-year, staggered terms for Supreme Court Justices, creating a vacancy every two years, thereby evening out the appointment opportunities among Presidents.”

Notably, both the progressive and conservative revisions of Article III, Section I use both the phrases “term of eighteen years” and “during good behavior” during their descriptions of the term limit process. This further reinforces the fact that the Constitution does not expressly grant “life tenure” to Supreme Court justices, and that numerous legal scholars easily find the phrase “shall hold their offices during good behavior” to be consistent with judicial term limits.

This exercise was part of the National Constitution Center’s Constitution Drafting Project. For more information, visit this page.