Time for Term Limits
As public trust in the Supreme Court wavers, term limits provide a possible solution.
Checks & Balances is a newsletter of the Society for the Rule of Law Institute.
By Donald Ayer
As the Supreme Court wends its way to the close of a term including monumental cases, discussion continues about how to improve its standing with the American people A number of things are ailing the Court, including 1) its striking political imbalance and its resulting decisions making many major changes in existing law; 2) serious criticisms of the nomination processes by which some of the current justices were confirmed; and 3) ethical concerns based on questionable conduct and issue of conflict of interest. Along with radical changes in American law, public trust in the Court has dropped sharply, all mostly in the last six years.
One step in addressing these problems is easy – Supreme Court justices should be subject to rules of ethical conduct that are enforceable by other judges, like every other judge in the federal system. The Court’s articulation of rules which are enforceable only by each justice against him or herself, is an invitation for public cynicism which no amount of explaining will cure. To stop the bleeding, there must be real rules and an effective enforcement process involving other judges.
Another step in ostensible pursuit of reform is a non-starter. Many on the left have suggested simply increasing the Court’s size and packing it with jurists to correct its ideological imbalance. While some rationalize this as recompense for appointment process irregularities that produced today’s Court, it would only aggravate the problem of chronic distrust in the Court. Tit-for-tat remaking of the Court to please a current political majority is a game all could play. It would just confirm beyond doubt that ours is not a system of predictable laws that exist independent of those in power.
The third alternative commonly discussed – term limits for the justices of the Court – is the most important and promising of all. This approach would set a term of years for each justice to participate in deciding cases within the Supreme Court’s jurisdiction, followed by service as a Senior Justice. Most commonly mentioned is an 18 year term, with appointments staggered to expire (and begin) every two years.
Importantly, the end of the 18 year term deciding cases within the Supreme Court’s jurisdiction would not end judicial service unless a justice elected to retire. Senior Justices could sit as judges in lower court cases, as nine justices, including Justices Breyer, Souter and O’Connor, have done since Congress passed the Retirement Act of 1937. They could also play a variety of administrative roles, for example involving judicial rules and court oversight, perhaps in coordination with the Chief Justice’s role as head of the Judicial Conference.
Term limits make sense because the current situation limited only by life tenure has become increasingly unworkable. While prior to 1970, justices served an average of 15 years, since then the average has increased to more that 26 years. With expanding lifespans, the proportion ultimately exceeding three decades is large and will likely grow. While any discretionary removal process would be an obvious threat to judicial independence (in addition to violating the Constitution), service for a set term of years would have no such effect. The end date of service in deciding cases within the Court’s jurisdiction would be known in advance, and served by justices usually in the prime of life, before stepping aside and making room for another.
The current system allowing unlimited periods of service by a single justice, sometimes until death at a very advanced age, is increasingly the cause of problems.
First, it is unsettling in a democracy for one unelected person to be able to hold such a powerful position in virtual perpetuity. A defined term would address this concern, and produce a pattern of substantial service while predictably making room for appointees of later elected presidents. The idea that such important appointments should be distributed among presidents in proportion to their elected terms is especially appropriate since the justices themselves are unelected. This approach is powerfully supported by the substantial public upset about the political maneuvering that allowed President Trump in one term to select three like-minded conservatives and thereby radically alter the balance of the Court.
Second, history demonstrates that individual justices cannot be relied upon to independently limit their own terms of service. Those who rise to this level of power and authority are often not eager to give it up, even for a fully paid retirement. Very likely this issue looks different to a justice at age 80 than it may have at 50. Consider Justice Stevens’ retirement at 90 in 2010, and Justice Ginsburg’s death at 87 in September 2020, after an 11 year bout with pancreatic cancer. Of course Ginsburg’s death led to the rushed nomination of Justice Barrett two weeks later and her confirmation just days before the presidential election, all of which contributed mightily to the present low public view of the Court.
My own recollections about a justice’s reluctance to leave office run to events fifty years ago when I was a law clerk to Justice Rehnquist. Starting there in 1976, I recall hearing talk about the resignation of Justice Douglas in late 1975, after more than 36 years on the Court. While Douglas had stepped down and Justice Stevens confirmed before I got there, it was no secret that Douglas had become incapacitated from a stroke in 1974 but strongly resisted pressure by his colleagues to retire. The other justices also found it necessary to enter an agreement by which Douglas would be denied the ability to cast deciding votes in current cases.
I also recall at that time – when he was just five years into the job of Associate Justice – hearing Justice Rehnquist express the view that 15 years was enough time for any justice to hold the job. And he did in fact serve just under 15 years as an Associate Justice. But after appointment as the Chief in 1986, he went on to serve another almost 19 years, before dying in office of cancer when he was almost 81.. No doubt things looked different to him in 2005 than they had in 1976.
Third, assuming most appointments were of people in good health, a set term would go a long way to address genuine questions, as well as corrosive though incorrect public doubts, about a particular justice’s fitness to serve. While the current Court is relatively young by recent comparisons, with two over 75 and two others over 70, within the last decade, three justices have exceeded 82. Especially given the substantial attention paid by the public in recent years to the age of President Biden (and now Trump), and the currency given to the notion that 80 is too old – leaving the Court to operate regularly with justices in their 80s is no way to enhance public trust in the Court.
Fourth, appointments to the Court at intervals of, say, two years, each by the president who has most recently secured election by the voters, will create an expectation of regularity in the way justices end up on the Court and hopefully make that process less of a free-for-all. There would be an expectation that each president would make two appointments each term, and barring successful efforts at chicanery, arguments that the system is somehow rigged in favor of particular viewpoints would become hard to sell.
Of course term limits will not overnight restore the balance now lacking on the Court. Nor are they a sure bet to solve the Court’s credibility problems. But they offer a promising approach to addressing clear weaknesses that have substantially undermined the Court as the ultimate arbiter of our laws. We should therefore, with real urgency, get on with the project of adopting and implementing them. One question will be whether that can be done by statute or, as some argue, necessarily demand a constitutional amendment. The main argument there is that justices “hold their Offices during good Behaviour,” meaning life tenure, which it is said cannot be reconciled with term limits. But is that really right, when the job of justice would be statutorily defined as including transition to a senior role of defined judicial responsibilities, as well as compensation for life?
My own view is that it can and should be done by statute. And if done by statute, there remain countless questions about how best to proceed. The Court would tell us in its wisdom whether a given statutory approach meets constitutional muster, and if not, a return to the drawing board would be necessary.
The key point I hope people of all political perspectives will grasp is this: the questions about term limiting the Supreme Court justices do not deal with whether it is a good idea. They are about the precise form in which it should be adopted and how that can best be accomplished. Instead of bogging down in the quagmire of too many choices, we should be focusing on the fact that term limits would be a huge benefit to the functioning of the Court, and get on with figuring out how to get it done.
Donald Ayer is a member of the Board of Directors of the Society for the Rule of Law. He served as Deputy Attorney General of the United States from 1989 to 1990, Principal Deputy Solicitor General from 1986 to 1988, and U.S. Attorney for the Eastern District of California from 1981 to 1986.