President Biden’s recent proposal for eighteen-year term limits for U.S. Supreme Court Justices is a watershed in the perennial controversy over the composition and powers of the U.S. Supreme Court insofar as it is the first time that a sitting President has called for institutional reform of the Court. Although Franklin D. Roosevelt’s Court-packing plan in 1937 advocated the addition of six Justices, Roosevelt’s proposal would not necessarily have permanently altered the Court’s structure. Biden’s proposal is particularly significant since Vice President Harris has endorsed it.
Proposals to limit the terms of Supreme Court Justices have been floated for at least two centuries. Most of these, unlike Biden’s proposal, have advocated term limits for lower federal judges as well as Supreme Court Justices. Hundreds of bills have been introduced into Congress during that time. Most — to borrow House Speaker Johnson’s prediction for Biden’s proposal – have been “dead on arrival,” although the House Judiciary Committee in 1894 favorably reported a measure for ten-year terms for federal judges.
Not surprisingly, advocacy of term limits has been most frequent during times when the Court’s decisions have been most controversial. During the late nineteenth and early twentieth centuries, when the Court was invalidating economic regulatory legislation and curtailing the rights of labor unions, support for term limits was common among populists, progressives, and trade unions. When the Court turned “liberal” during the chief justiceship of Earl Warren (1953-1969), term limits were advocated by “conservatives.” Support for term limits has risen sharply during the past four years, when “conservatives” have commanded a six to three majority on the Court.
Term limits are only one of the many proposals for curtailment of judicial power which have been widely advocated during the past two centuries. Other proposals include election and/or recall of federal judges; congressional overrides of Supreme Court decisions; requirement of super-majorities (6-3, 7-2, 8-1 or 9-0) for invalidation of federal and/or state legislation; withdrawal of jurisdiction over various controversial subjects (e.g., school prayer, abortion, and various criminal procedures); recall of judicial decisions by popular vote (advocated by former President Theodore Roosevelt in 1912); and the creation of a super-Supreme Court composed of state supreme court chief justices (proposed by “conservatives” during the early 1960s). Of these various proposals, term limitation is the least radical to the extent that it is the only one that would not curtail the institutional powers of the Court.
Many of the proposals for term limits, like Biden’s proposal, have called for eighteen-year terms, which is a logical limitation since it would provide the Justices with reasonably lengthy and secure tenure and would permit the appointment of new Justices every two years. Some term limit plans have advocated shorter terms, but have provided for subsequent re-appointment.
One of the reasons why the proposals have never made any significant headway is that term limits presumably would require a constitutional amendment since the Constitution says that federal judges serve during “good Behaviour,” which generally has been interpreted as requiring life tenure. Since political opposition to the general drift of the Court nearly always has been the genesis of term limit plans, such plans nearly always carry the baggage of a partisan agenda even though they are neutral on their face. This association with partisanship is why it is unlikely that any such plan could ever command the broad base of support which is necessary for a constitutional amendment, which requires ratification by two-thirds of both houses of Congress and three-quarters of the state legislatures (unless the even more arduous state convention alternative is used). Some advocates, however, have recently argued that limitation of the tenure of Supreme Court Justices would not require an amendment since Supreme Court Justices could serve as lower federal judges after the expiration of their terms. Biden did not explain whether he was advocating a constitutional amendment.
When Biden became President three years ago, shortly after the Court’s balance of power had shifted, Democrats introduced bills in Congress to permit Biden to appoint four more Justices. These “Court packing” bills were widely assailed for their blatant partisanship, with critics pointing out that both parties could play this game and that a future Republican president might also pack the Court, causing the number of Justices to expand ad infinitum until the Court had an unmanageable number of Justices. Not wanting to touch this political hot potato, Biden punted the issue of Court reform to a Presidential Commission on the Supreme Court of the United States, which methodically discussed various reform proposals without making specific recommendations. Term limits were one of the proposals that the Commission’s final report discussed.
One of the principal arguments in favor of term limits is that it is undemocratic for any person, particularly an unelected official, to exercise such immense power for life, which is why life tenure is highly unusual for any office in the modern world. As California jurist Macklin Fleming once pointed out, life tenure “is generally limited to popes, constitutional monarchs, and poet laureates.” Every state except Rhode Island limits the tenure of its supreme court judges, through term limits ranging from six to fifteen years, and/or with a mandatory retirement age, typically age seventy. Although some states permit renewal of terms through elections or re-appointment, most of these states have mandatory retirement ages. Proponents of term limits also argue that term limits are justified to the extent that human lifespans have considerably increased during recent decades.
Some critics of life tenure point out that presidential tenure is limited by the Twenty-Second Amendment, enacted in 1951. This analogy is not particularly apt, however, since the diffusion of power among nine Justices is different from the concentration of power in the one-person President.
Advocates of term limits also contend that long tenure makes Justices stale, isolating them from the social, economic, and cultural currents that help guide the growth of the law. Most Justices, however, appear to keep closely in touch with changes in society through frequent travel throughout the world that exposes them to a wide variety of persons, problems, and ideas. Indeed, many of the oldest Justices and longest-serving Justices have been the most receptive to innovative approaches to legal problems. The interaction of Justices with their youthful law clerks likewise may help refresh their perspectives on issues which affect their decision-making. The hazards of a geriatric Court have been ameliorated during recent decades because the increasing politicization of the appointments process has caused Presidents to nominate increasingly younger Justices to help perpetuate particular ideological viewpoints. Of course, this also exacerbates objections to life tenure to the extent that Justice who are appointed at a young age are likely to serve for longer periods.
Another argument in favor of term limits is that they would help to ensure that Supreme Court appointments more accurately reflected the ideological preferences of voters in presidential elections insofar as two appointments would occur during each presidential term, at least unless a Justice died or retired. This would ameliorate the haphazard timing of judicial appointments, which has enabled some presidents to make several appointments during a term of office while denying other presidents an opportunity to make any. This can and indeed has affected the ideological complexion of the Court. Democratic presidents Obama and Biden have made only three appointments to the Court during their nearly twelve years in office, compared with the six they would have made pursuant to Biden’s plan. Obama was not able to appoint anyone to the Court during his second term. Trump, on the other hand, was able to make three appointments during his single term in office, one more than Biden’s plan would have allowed. Trump’s good luck in serving during a time of high vacancies therefore may have magnified the power of those voters who cast ballots for Trump in 2016.
A corollary argument is that term limits would practically eliminate the incentive of Justices to time their retirements to permit presidents of their own party or ideological hue to select their successors since their replacements could only fill out their terms. As the Commission’s report pointed out, strategic retirements “can contribute to the perception that the system is unfair or rigged.” Politically-timed retirements also may encourage Justices to cling to their seats despite ill health, as Justice Ginsburg may have done in order to try to ensure the appointment of her successor by a Democratic president.
Opponents of term limits question the contention that term limits would generate a Court that is more faithful to the wishes of voters as expressed in presidential elections. They begin by attacking the very premise that the Court should somehow reflect the wishes of voters since the Court’s function is to faithfully interpret and apply the law rather than to discharge the will of the people. Indeed, one of the Court often has protected various political, religious, and ethnic minorities by exercising its so-called “counter-majoritarian function” in ways which frustrate the will of majorities of voters. Moreover, there is a highly questionable empirical connection between the preferences of voters for presidential candidates and their opinions about issues that the Court decides. The multitude of factors which influence voting in presidential elections are too diffuse and inchoate to permit the conclusion that a presidential election represents a mandate for a particular type of Supreme Court Justice or support for a particular ruling on any specific issue that may come before the Court. Judicial issues were rarely factors in presidential elections until the past few elections, and they still are not particularly salient.
The most potent argument against term limits is the potential threat to judicial independence. Aspirations for a post-Court career in law, business, or politics might influence a Justice’s votes, or at least the way in which a Justice wrote her opinions.
Although an eighteen-year term is so long that many Justices might be past the age of ambition by the time they retired from the Court, particularly since term limits would reduce a president’s incentive to nominate youthful persons, it is likely that at least some retired Justices might be sufficiently healthy and ambitious that they would seek new positions of power and influence. This especially seems possible since Justices are Type-A personalities who are not likely to want to immediately recede into leisurely retirement after having spent eighteen years at a pinnacle of power. Service on the Court would hugely facilitate their transition into practically any kind of career to which they might aspire.
Advocates of term limits point out that the financial security of Justices after leaving the Court should reduce incentives to allow the prospect of later employment to interfere with their independence while on the Court. Justices retire at full salary, with cost of living adjustments, and Justices during recent decades have tended to be far wealthier than their predecessors, mostly because of the low tax rates and soaring securities prices during the past forty years. It would be natural, however, for former Justices to seek even greater wealth. Moreover, desire for power is more likely to fuel their ambitions.
The threat to judicial independence is greatest if a Justice aspired to a later political career. A Justice who aspired to a lucrative partnership in a private law firm, an appointment to a federal agency, a law professorship, or a university presidency probably would not need to trim her performance on the High Bench since her votes or opinions would not impede her paths to those positions. Her reputation as a Justice, in contrast, could enormously influence the extent to which she might succeed in partisan politics.
It is entirely possible that a former Justice might wish to parlay her judicial service into a political career. Until fifty years ago, many Justices had served in high elective federal and state offices before their appointment to the Court, and many harbored presidential aspirations. Between 1832 and 1956, at least one Justice openly or covertly sought a presidential nomination in two-thirds of the election cycles. For the past half century, virtually no one appointed to the Court has had a political career, but a Justice who has no previous political experience might want to seek high political office, particularly a Senate seat or the vice presidency or presidency. The lack of previous political experience should not be a significant hindrance, particularly in an era in which candidates without political experience are increasingly elected to high offices. Indeed, the exposure of the Justices to significant politically tinged issues which come before the Court may provide them with as much or more expertise in public policy than many officials in the legislative and executive branches of state and federal government have been able to obtain. The growing (and disquieting) tendency of Justices to court publicity and to become virtual celebrities through public speeches, publications, and media interviews provides them with name recognition and acclaim that would go far toward facilitating a political career.
The long paper trail generated by an eighteen-year term as a Justice could derail such a career, however, unless a Justice with political ambitions could craftily adjust her votes and opinions to fit her political aspirations. Even politically ambitious Justices who had the integrity to resist such temptations might be subconsciously influenced by political considerations in voting or writing opinions. Even if a Justice did not have such aspirations or resisted the temptation to allow them to influence her performance on the Court, the public perception or suspicion that she was allowing political considerations to influence her could erode public respect for the Court.
Erosion of respect would be especially baneful since public confidence in the Court already has been shaken by an unprecedented series of allegations including financial irregularities and conflicts of interest among Justices. Although term limits might help to ameliorate the impact of ethical lapses by Justices since wayward Justices would leave the Court after eighteen years if their behavior was not so bad as to warrant removal through impeachment, the prospect of the influence of political ambition might outweigh this advantage.
The arguments in favor of term limits may be better than they were when I published a law review article opposing term limits thirty-four years ago, in 1990. This is because the Court, or at least the public perception of the Court, has become considerably more politicized during that period. Decisions of the Justices appear to have become even more closely aligned with the two major political parties; the appointment process has become even more tumultuous; and judicial issues have become more prominent in presidential and senatorial elections. On the other hand, the Court’s power and the ways in which the Court has exercised that power have always been controversial and have often generated criticism and proposals for reform that have been at least as intense as what as what has occurred during the past several years. Although there is some merit in Biden’s proposal, it is my opinion that the possible threats to judicial independence tip the scales against it.
William G. Ross is the Albert P. Brewer Professor of Law at the Cumberland School of Law at Samford University, where his courses include American constitutional law and constitutional history. He has published extensively on efforts to curtail the powers of the federal courts.
