Why Supreme Court should install 18-year term limit for justices
The Supreme Court's now-confirmed intention of overturning the half-century-old protection for abortion rights in Roe v. Wade is energizing the debate over how to rein in the court's extreme conservative slant.
Expanding the court beyond its current complement of nine justices has long been the most widely discussed option.
Another idea may be gaining traction, however: Eliminating the justices' right to lifetime appointments by imposing a term limit. This option, which has been discussed for decades, received its most recent airing in March at a roundtable among law professors sponsored by Sanford Levinson of the University of Texas School of Law.
“It is telling that all of us seem to be fully comfortable with the idea of term limits,” Levinson wrote after the event. “It is getting harder and harder to find anyone who genuinely defends either as `necessary' or even `proper' the truly exceptional national American practice of `full-life' tenure that allowed John Paul Stevens to serve for 34 years until he turned 90.”
Levinson is correct. The Founding Fathers almost certainly did not expect Supreme Court justices to serve that long, and for most of American history they didn't.
The average tenure on the court was 15 years until the 1970s, when it shot up to nearly 26 years. By 2005, the average age of justices at death or resignation was nearly 79, a record.
“Life tenure today means a significantly longer tenure than it meant in 1789,” Steven G. Calabresi and James Lindgren of Northwestern University observed in 2015. The average has plainly risen since then — Ruth Bader Ginsburg died in office at 87, Antonin Scalia at 79. Stephen Breyer retired this year at 83 and Anthony Kennedy in 2018 at 82.
The trend is an artifact of improved health care. The average age of Supreme Court justices at the time of their appointment has remained stable since the late 1700s at about 50 to 55, but life expectancy since then has soared.
Pros and cons exist for both options for reshaping the court. Term limits appear to be more popular than expanding the court: Among respondents to a Morning Consult/Politico poll, 66% favored term limits for justices versus 21% against them, while only 45% favored expanding the court versus 36% against.
The poll was taken after the leaked disclosure Monday of a draft opinion by Justice Samuel Alito overturning Roe v. Wade, the 1973 decision that guaranteed abortion rights nationwide.
On the negative side, imposing a term limit on the justices may be legally more difficult than expanding the court. The constitutionality of subjecting Supreme Court justices to fixed terms via legislation rather than through a constitutional amendment is open to question, and the amendment process is inherently more complicated than congressional action. Changing the number of justices, on the other hand, unmistakably falls within congressional authority.
Before delving into how to fix the Supreme Court, let's examine how it's broken.
It has become clear in recent years that the court has moved well to the right of American political sentiment.
Legal experts Nancy Gertler and Lawrence Tribe, who were members of a commission established by President Joe Biden to weigh options, wrote last year that “the anti-democratic, anti-egalitarian direction of this court's decisions about matters such as voting rights, gerrymandering and the corrupting effects of dark money” made reshaping the court imperative. (They favored expanding the court “as soon as possible.”)
A wide gulf plainly exists between what appears to be a court majority restricting abortion rights and public opinion, which overwhelmingly favors access to abortion in some or all circumstances. Only 20% of Americans think abortion should be banned entirely.
The most common version of this proposal is for a term limit of 18 years, combined with a permanent fixing of the court's size at nine. The goal would be to provide an opening on the bench every two years, or two in every presidential term.
Fixed terms for justices would offer at least three virtues. It would help make the Supreme Court more reflective of contemporary political mores — justices in their 50s and 60s would surely be more attuned to the ebb and flow of social movements than those in their 80s.
No one ever said restructuring the Supreme Court would be easy. FDR learned that from the failure of his court-packing scheme, which aimed to produce and solidify a liberal bench, but which almost brought the entire New Deal to a screeching halt.
But with this court now poised for overtly partisan purposes to scrap a legal principle that has protected women's reproductive rights for more than a half-century, the effort is necessary and urgent.
No change could be implemented without a delay of several years at least. But with the abortion ruling now dominating political debate in America, the time to start is now.