Term limits might work

This month’s Supreme Court arguments on Mississippi’s 15week abortion ban, which did not go well for the pro-choice side, have rattled Democratic senators to the point that more are talking about reforming the court.

A new report from a bipartisan presidential commission underscores that court reform could bolster judicial independence and the court’s legitimacy. Or it could do the opposite.

It is still unclear what the court will do with Roe, and no single ruling would justify changing the court. That would invite criticism that the legislative branch was further politicizing the judicial one, upending the court because lawmakers dislike the policy outcomes that have resulted from justices’ decisions.

Some Democrats believe the solution is to pack the court with Democratic nominees, expanding its size, while they still have congressional majorities. This would be a historic mistake. It would sap the court’s legitimacy for no long-term benefit; Republicans could re-pack the court the next time they controlled Congress and the White House.

The commission report points out that, while expanding the court is highly controversial, there is much wider and bipartisan agreement on imposing term limits on Supreme Court justices. Terms could be long—perhaps 18 years—and expire in a staggered manner so that an equal number of vacancies come up in every presidential term. This would lower the stakes of the court confirmation process, diminish actuarial tables and luck as factors in which presidents get to decide the court’s composition and guard against justices suffering from mental decline while still on the bench. More people would be able to serve on the court, so the preoccupations and quirks of a handful of lifetime appointees would no longer determine the law of the land.

The situation will only get worse without change. Term limits make sense.