Asst. Opinion Editor Patrick Healy
The Supreme Court has long been the most popular branch of government. Despite not being directly elected, it’s seen as an objective protector of our rights. Instead of uncouth political screeds, it offers lengthy opinions filled with fancy words. But polarization’s tendrils have been wrapping around the Court since the contentious nomination of Robert Bork in 1987.
Since then — because the court of last resort can strike down nearly any law by nearly any government — presidents have prioritized young, ideological justices who can protect their agenda for years to come. The idea of the “neutral justice” was always a myth, but more people recognize this now than before. As with other branches, we would be better off accepting party politics and making the nomination process as fair as possible.
We can regulate the Court by imposing 18-year term limits on each justice, with one justice being replaced every two years. Each president would be able to appoint two per term; instead of secretly hoping for a slew of ideologically opposed justices to retire or die, we could just allow each president two justices. Donald Trump got to appoint three justices, each of whom will serve for upwards of forty years, whereas Joe Biden might get to appoint just one — and the most likely to require replacement is Justice Breyer, a liberal.
This is the signature policy of Fix the Court, a national organization dedicated to reforming the federal judiciary. The policy would exempt current justices from the term limits, which would probably help to win conservative support for the reform.
After an 18-year term, justices would keep their salary and be offered a position on a lower court. They’d also be added to a pool of “senior” justices that could be called upon if an active justice resigned or died. This undercuts the legal issue. Article 3 of the Constitution provides that justices shall serve in “good Behaviour.” This usually means life tenure, but it can be sidestepped by offering justices to serve on lower federal courts and by letting them keep their “Office” — their title and compensation.
Along with solving the constitutional problem, the stable of senior justices would allow presidents to plug short-term holes on the Court; they would be appointed by the president to serve out the rest of the term, but that’s all they would get. Fix the Court’s plan doesn’t provide for a lack of senior justices. I think if there are no senior justices available, the president should then be allowed to appoint a lower federal court judge to temporarily serve out the term.
Opponents of Court term limits also cite a fear that justices will step down when politically-aligned presidents are in office; in other words, they would take one for the team. But this can happen now — term limits wouldn’t exacerbate the existing problem. One genuine problem term limits may pose is a loss in judicial ability.
The Court is supposed to be composed of the nine greatest legal minds of a generation. So by limiting their terms and substituting slightly inferior justices, we might be diluting the ability of the Court. The legitimacy and respect afforded the Court (especially in comparison to Congress) come from its well-written opinions and non-partisanness.
However, a small step back in the quality of opinions would be outweighed by a giant leap forward in fairness if each president were given the same number of appointments. The moderate brain drain caused by losing especially brilliant justices is acceptable to me, just as the possibility of losing a great president after two terms is acceptable to most of us. New justices could also provide fresh insights and challenge other justices to better defend their opinions.
Another, subtler problem with lifetime appointments is the anti-democratic ability of past presidents to inhibit future ones. George H. W. Bush (the older one) is now dead, but his appointee Clarence Thomas is still ruling over decisions made by the current president. Trump’s three appointees could easily serve until 2050. That wasn’t the point of the lifetime appointment.
The purpose of lifetime appointments was to allow justices to make decisions without fear of losing reelection. There is no need for lifetime appointments to gain this advantage — we can have it with term limits. Justices would not fear removal when serving their terms. Newer, more modern justices would replace them eventually, regardless of the popularity of their decisions.
Not only are term limits already imbued in our political culture, but they are popular. According to a 2020 Rasmussen poll, more than half of Americans support term limits for the Supreme Court, and less than a third oppose them. This wouldn’t require a constitutional amendment, so President Biden and the Democrat-controlled Congress could pass it even without Republican support.
Though the controversial 2020 Amy Coney Barrett hearings prompted a surge of support for term limits, court reform shouldn’t be pushed aside until the next confirmation battle stirs it up. We can do it now, in a non-partisan manner that preserves the existing composition of the Court.
It might be a blow to liberals to allow active justices to keep their lifetime appointments, but it would assuage conservatives as well as constitutionality concerns. Also, it could prevent the Court from ruling the law unconstitutional in an effort to protect themselves.
I don’t know what to do about the other 861 federal judges: we can fix the body of the federal judiciary system after we fix its head. We could do it at the same time, if we’re ambitious enough. The same logic that supports Supreme Court term limits would apply to lower federal courts as well. New York State manages; it imposes term limits and mandatory retirement ages for all of its judges.
Unlike other government reforms, Court term limits wouldn’t take a new federal agency or massive new spending bills. We’d need to pay for more judges and reconfigure how federal courts work, but those are manageable costs and have precedents in state judicial systems.
Republicans complain of potential court-packing by Democrats, but they were the true packers when they stuffed three fifty-year-olds onto the Court under Trump. I don’t blame them — that was the smart play. Fix the Court’s proposal grandfathers in Republicans’ three young nominees while ending both parties’ incentive to nominate younger and younger jurists.
Ad hoc nominations are stressful and pointless; filling the highest court can be a routine procedure instead of a gamble over active members’ lives. Court term limits bills have already been introduced in Congress: the public is behind them, and we have examples in state judicial systems — oh, and they’re constitutional too. There isn’t a reason we should have to go through another contentious hearing process or pray for the demise of a disliked justice again.