Should the Supreme Court have term limits as opposed to lifetime appointments? A version of this idea has been floating around lately, so I decided to give it a look. Let me say upfront that I don’t actually have a very strong opinion on whether set terms for Supreme Court Justices would be better than a lifetime appointment, mostly because I haven’t thought about it for very long. But for now, I’ll try to review the idea positively.
From what I understand, the main reason for Supreme Court Justices to have a lifetime appointment is to make them less subject to political influence. The President can remove members of his cabinet at any time for any reason, which gives the President a great deal of influence over them. Other important federal positions can be removed by Congress, or at the very least maintaining a position depends on continued re-confirmation by Congress. If Supreme Court Justices could be removed from office by either the President or Congress, this could have the effect of putting members of the Supreme Court under the thumb of the President or Congress. This could inhibit their ability to issue rulings that are correct but unpopular, as well as undercut the ability of the Supreme Court to serve as a check on the other two branches.
But if this was the case, insulating Supreme Court Justices from influence from the other two branches would only require that those branches not be able to fire a Justice for voting the “wrong” way – and that doesn’t require a lifetime appointment. With the term limit system under proposal, a Justice would serve for 18 years – and during that time they would be just as protected from removal for unpopular rulings as they are currently. Once their term has completed, according to this proposal, they would be designated as “senior Justices” and continue to receive their full salary for the remainder of their life and could serve in an assisting capacity to the active justices on the Supreme Court. In instances where a sitting Justice recuses themselves from a case, one of these “senior Justices” can return to the bench to rule in their place, ensuring the case is still argued before nine justices. The same could be done in the case of an early retirement or if a sitting Justice dies – their spot could be temporarily filled by one of these senior Justices until a proper replacement is appointed. Justice terms would be timed so that each presidential administration appoints two Justices, one in the first year of the administration and the other in the third year.
A move like this wouldn’t be without some precedent, of course. The legislative branch of government has already imposed term limits on the executive branch. On the topic of executive term limits, Thomas Jefferson once said:
In the beginning, limitations on Presidential terms were, in Jefferson’s phrasing, “supplied by practice” with most Presidents deferring to the so-called “two-term precedent” established by George Washington and Jefferson himself. Of course, this was simply a tradition, not a legal restriction, and it depended on Presidents willingly engaging in obedience to the unenforceable. After this precedent was broken by FDR, Congress moved from having this limitation “supplied by practice” and made it “fixed by the Constitution” with the 22nd Amendment.
I don’t think the odds of the Supreme Court term limit proposal actually passing are very good, but it does raise an interesting question. Let’s just imagine for a moment that it did pass. It would mean that we’d be in a situation where the legislative branch of government had imposed term limits on both the executive and judicial branches of government. This raises an obvious question – if term limits are good for the executive and judicial branches of government, might term limits also be good for the legislative branch? Such limits could only be created by the legislative branch itself. If the legislative branch put term limits on the other two branches of government, would they apply similar limitations to themselves, or ensure they continue to face no such limitations? And what are the implications of that?
Discuss!
READER COMMENTS
Jon Murphy
Sep 7 2023 at 1:47pm
If I may offer clarification:
A Supreme Court Justice can be impeached and removed from office by Congress. Justice Samuel Chase was impeached (although aquitted by the Senate). Congress does have the power to remove justices; it’s just a very limited power.
Correct me if I am wrong, but I think you’re discussing a less difficult means of removing them from office?
Kevin Corcoran
Sep 7 2023 at 2:01pm
Yes, you are correct! The Constitution rather vaguely states that Justices shall continue to serve during “good behavior”, which opens the door to things like judicial impeachment if a Justice, say, was found to be taking bribes in exchange for voting a particular way. But that’s not the kind of influence from Justices are supposed to be insulated from by their lifetime appointments. Instead, I have in mind situations where Congress passes a law against flag burning, and the Supreme Court overturned it on First Amendment grounds – if Congress could respond to that by removing Justices from the bench because Congress feels that the judges voted the “wrong” way, this possibility might in turn might make Justices hedge and vote to uphold such a law. That’s the kind of political influence Justices are supposed to be shielded from – but that wouldn’t necessarily require a lifetime appointment to achieve.
Jon Murphy
Sep 7 2023 at 1:53pm
Good question. If I were a legislator justifying term limits on thee but not me, I would point out the size difference. If the President or the Justices became promised and unable to perform their duties, and thus necessitated term limits, it is because there is so few of them. There is just one President and 9 Justices. If age or some other factor prevents them from serving well, then their proportional impact is significant. Alternatively, if a single legislator is unable to perform their duties, the impact is considerably smaller: there are still 534 other members of Congress, ensuring it could operate well.
Perhaps one way to solve this problem (albeit a very difficult way) would be to remove the 17th Amendment (the direct election of Senators) and return the Senate to the old way: Senators serve at the pleasure of their state legislators.
Kevin Corcoran
Sep 8 2023 at 11:04am
One the one hand, there is a certain disanalogy in the hypothetical justification you offer. Namely, the reason given for term limits on the executive branch, and a prominent reason given for term limits on the judicial branch, is not that they are few in number and therefore sudden inability to carry out their duties is especially risky and therefore their terms should be limited, but rather that it’s simply dangerous for someone to wield so much power for too extended a period of time. (Random fact – apparently, in terms of “dying on the job”, the Presidency is the most dangerous job in America.)
Still, the argument could be made that the dangers associated with holding power over an extended period are lower for legislators than the executive or the Justices, because they are legislators are greater in number and therefore their power is more dispersed for any given person. I’m not sure I would be persuaded by the argument, but it does seem like a relevant difference. But in a country with hundreds of millions of citizens and only a few hundred legislators, the downsides associated with a lifetime of entrenchment in that system still seems like something that should be limited. With re-election rates being what they are, you can have spans decades long where the individuals making up the legislative branch are 90% the same, with only small rotations in and out on the margins. That seems at least as worrisome to me as the idea of a President holding power for more than 8 years.
Peter Gerdes
Sep 7 2023 at 3:13pm
A huge disadvantage of term limits is that it makes the appointment of justices predictable. Right now norms about not being ghoulish or too hypothetical give canidates huge freedom to dodge attempts to get them to make commitments about their appointments. This has the effect of ensuring their incentives are primarily to appoint respected smart legal scholars who broadly share their values and will be most able to shaoe future law. If they have to make commitments to get votes, the voters/interest groups will demand extremely detailed outcome oriented commitments (their biggest concerns might not be prez’s).
That’s very bad for the country.
David Seltzer
Sep 7 2023 at 5:33pm
Kevin, interesting question. As SCJ’s are appointed for life, they are, ostensibly, less subject to political influence. It seems they can be regarded as a control group. For the United States Court of Appeals for the Federal Circuit, the chief judge serves a term of seven years, or until age 70, whichever occurs first. It would make sense to establish a null hypothesis stating there is no more political influence for circuit court justices than supreme Court justices and test as best one can using data and rigorous scientific inquiry. My prior is .8 in favor of the null. Of course I could be wrong.
Rick Surles
Sep 7 2023 at 7:41pm
Would term limits for the Supreme Court require a constitutional amendment?
Mactoul
Sep 7 2023 at 8:23pm
In India the Supreme Court justices retire at 65. Perhaps the age could be raised quite a bit. And the full court has 33 judges so they come and go pretty quickly and nobody much cares.
By the time they are appointed, they tend to be around 60 so their terms is quite short.
nobody.really
Sep 8 2023 at 2:29am
1: I never thought that the point of a lifetime appointment was not to remove Justices from the threat of being removed by the other branches; as noted above, they still face that threat.
2: Rather, I thought the point was to ensure that Justices would render decisions without any concern for how it would affect their future employment after they left the bench. If they knew that they’d be looking for a job after they left the bench, they’d have an incentive to render decisions that would please potential future employers.
But as we’ve observed, offers of future employment are not the only ways to bribe a judge. In the absence of functional rules of ethics, any judge can put his vote up for bid. So maybe a lifetime appointment isn’t all that important after all.
3: I see two rationales for creating term limits for Justices.
A: The lifetime appointment system creates an artificial bias to appoint young Justices–that is, Justices with long expected lifespans. Creating term limits would reduce this bias, thereby freeing presidents to appoint people with greater life experience.
B: Given the stakes in the lifetime-appointment process, and the random way in which presidents get the opportunity to appoint justices, the advise-and-consent processes in the Senate has become a gladiator pit.
I understand the term-limit idea as reflecting a conceptual change, making the Supreme Court more like multi-member independent agencies–where board members are appointed for staggered terms, so a new president can only gradually make appointments to the board. The public expects to pick a president every four years, and expect the president to appoint people to independent agencies. The Senate tends to rubber-stamp these appointments because they understand that the right to make these appointments are part of the spoils that fall to every president, and the next president will typically have the same opportunities. Moreover, they recognize that the president will appoint people explicitly based on their viewpoint/bias, including partisan biases, so there’s less of a need to pretend otherwise. You rarely hear a nominee for the Federal Energy Regulatory Commission bloviating about how she’s “just an impartial umpire calling balls and strikes….”
In sum, by (a) reducing the stakes and (b) making it clear that every president will have a roughly equal opportunity to make appointments, we can reduce the heat and increase the candor. SCOTUS could then forthrightly acknowledge the role it has long played–as a super-Senate, populated with politicians who just happen to have really long terms. Their long terms would enable the Justices to delay change (for example, upholding or rejecting abortion rights). But their finite terms would let everyone know that, so long as the public keeps electing presidents with a certain viewpoint, the public could calculate the date when the new majority would wrest control from the old and begin overturning prior rulings. Finally, the Justices could abandon the façade of having unique wisdom or transcending politics.
What we lose in mystery (and the inevitable disillusionment and cynicism), we’d gain in candor. In a democracy, people should have a realistic understanding of how government functions. Treating SCOTUS like one more independent agency would be a start.
Kevin Corcoran
Sep 8 2023 at 11:33am
Let me more clear about the kind of “political influence” I always understood lifetime appointments as being used to contain.
In the early 20th century, FDR was annoyed with the Supreme Court. He had grand plans for increasing the scope and power of the executive branch, and many of his plans passed with the support of the legislative branch. But the Supreme Court had a habit of saying “sorry, we looked at the Constitution and reviewed the ‘few and defined’ enumerated powers granted to the federal government, and what you’re trying to do here isn’t on that list, so we’re shooting down this legislation as unconstitutional.”
Even though judicial impeachment existed and had been attempted once by this point, that didn’t supply FDR or the legislative branch with the ability to remove these annoying Justices who kept getting in the way of his plans. So, FDR found a roundabout way of doing what would essentially be the same thing with his court-packing proposal. The not-so-veiled threat was to just keep adding FDR approved Justices to the Supreme Court until the sitting Justices would have no effective power, and the FDR approved Justices would be guaranteed to have a controlling majority. De jure, the sitting Justices wouldn’t have been “fired” or “removed” in response to their rulings, but de facto the result would have been the same as if they had been removed from the bench. Many historians argue that it was in response to this threat that the Supreme Court suddenly reversed its tune regarding FDRs preferred legislation and began upholding his programs in court – the proverbial “switch in time that saved nine.”
That is the kind of political influence I’ve always understood that lifetime appointments was meant to protect justices from – the idea that if the executive or legislative branches could fire justices for voting the “wrong way”, it would make the Supreme Court behave in a way that was subservient to those branches, rather than serving its role as a check-and-balance on those branches. And frankly, I find the prospect of the Supreme Court feeling the need to be subservient to the other branches of government the far greater concern than them wanting to impress potential future employers. (Although this proposed legislation would take care of that concern as well with the whole “senior Justice” designation, if I understand it correctly.)
All that aside, while your thoughts on the potential rationales for judicial term limits are of some interest, the real question I was interested in was whether or not arguments could be made for the value of term limits on the legislative branch, and if so, whether legislators would actually take the steps to put that limitation on themselves, why or why not that might be the case, and the implications of that.
steve
Sep 8 2023 at 4:00pm
What’s the incentive for legislators to limit their own terms? Not really seeing many so I don’t see it happening.
Steve
nobody.really
Sep 11 2023 at 4:13pm
1: Yes, the Constitution places no limit on the number of Justices on SCOTUS, so the combined force of Congress and the President can threaten to dilute the power of the existing Justices by adding more Justices (“court packing”).
But, of course, lifetime appointment does nothing to protect justices from this threat.
Nor would term limits alter this threat–but if we implemented term-limits through a constitutional amendment, we could set the number of Justices at the same time, thereby reducing Congress & the president’s power to threaten court-packing.
But consider: Who should care? Conceptually, SCOTUS is a reactive agency, without an agenda of its own. (And I surmise that some here would argue that there is no such thing as SCOTUS–merely nine individuals and their staffs–so the idea of SCOTUS having an agenda is doubly doubtful.) So if Congress (that is, some collection of federal legislators) and the president choose to use legal means to dilute the power of sitting Justices, would the sitting Justices have any basis to object?
I have difficulty identifying anyone who has a cognizable interest in maintaining the status quo. The choice to have nine Justices is pretty arbitrary–as is the current composition of the court.
2:
Much depends on your view of “Who should guard the guards?” I get that Public Choice Theory does much to undermine the prestige of elections as a basis for making group choices. But should public choices instead be explicitly made by whoever has the resources to bribe the Justices (through offers of employment or otherwise)? Whatever the shortcomings of voting, it bestows the veneer of legitimacy on the victor. And in the long run, I regard democracy’s job as bestowing this veneer–and thereby deterring potential rivals from seeking to seize power by raw force.
Sure, we could make such arguments–but I regard those arguments as weaker as applied to elected offices. Again regarding the question of “Who guards the guards?,” the democratic answer is that the person who wins the election oversees the overseers–and the public can throw those bums out at the next election. This is not true of Justices, a fact that arguable justifies more stringent limits on their authority. So if ANY office warranted term limits, arguable the judicial branch would.
robc
Sep 8 2023 at 8:40am
I have always liked the 18 year limit, because then each President would pick exactly 2 justices in a 4 year term (assuming no deaths). Even a 2 term president couldn’t appoint a majority (assuming no deaths).
steve
Sep 8 2023 at 9:05am
I have always liked this idea. We need to admit that SCOTUS justices are politicians just like everyone else, just with a lot more power. They dont call balls and strikes, they make legal judgments based upon their political ideology. That means the stakes for their nominations have become incredibly high. The goal is to nominate people that are as young as possible and preferably with minimal judicial experience so that they haven’t ruled on controversial issues. (This is even worse at the lower level courts where they are approving people in their 30s with no real experience.)
On the other end we should also realize that while in theory we can impeach them in reality we cannot remove them. There is very little they can do that would get the political party who supports a given judge to agree to vote them out. Look at the recent ethics issues. I cant take a pencil from a drug rep but judges can accept darn near anything, just claim they are a friend. Then we have the judges hanging on even when they are barley able to function. If we are going to put people into political positions where they cant be removed after being named with minimal qualifications let’s at least have the jobs not last a lifetime. I would be happier with 10 or 12 years.
Steve
Thomas L Hutcheson
Sep 10 2023 at 1:43pm
The rationale of term limits, either by age or years of service is to remove the power of a sitting justice to influence the choice of their successor.
An age related limit on legislators could make sense on competence grounds, but years of service limits, unless quite long, would just shift power to the executive as there would be no long-serving legislators who could go toe to toe with the executive on policy (unless legislative expertise could be embodied in Congressional staffs).
Matthias
Sep 12 2023 at 9:31am
Germany doesn’t have term limits for most politicians, eg not for the chancellor. Germany is doing ok.
Russia does have some kinds of term limits for their most important position. Russian doesn’t seem to be doing ok.
I don’t think term limits are that important one way or another.
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