Follow David Souter’s lead

Across-ideological supermajority of Americans thinks it’s time for Supreme Court justices to have term limits. The justices themselves could help us get there.

At the end of October, the Our Common Purpose Commission that I co-chair at the American Academy of Arts and Sciences released a report explaining how we could achieve term limits for justices. While the Constitution establishes that members of Supreme Court are appointed for life, it would be constitutional, the study group argues, for justices to have their duties modified after 18 years to take them out of the court’s ordinary work of addressing the merits of cases. They could shift to alternative duties.

Take the case of David Souter. He was appointed in 1990 and “retired” in 2009 but continues to hear cases at the circuit-court level. Souter is the court’s George Washington.

Washington voluntarily chose not to run for reelection after two terms in office and thereby established a norm that presidents would serve only eight years. The norm held through the next 30 presidencies and nearly 150 years, until it got busted by a world war. Thereafter, the 22nd Amendment formally established a two-term limit.

While Souter chose this modification of duties — and the timing permitted President Barack Obama to replace him with an ideologically similar justice in Sonia Sotomayor — the requirement that all justices shift off the court to modified duties after 18 years could be laid down by federal statute. With nine justices on staggered terms, each presidential term would carry the right to make two appointments.

At this point, there’s not much difference between the high degree of difficulty of passing a constitutional amendment and trying to get something through Congress.

Which is why norm-setting is so important, especially right now. The Supreme Court could itself, like Washington and Souter, deliver term limits as a professional norm, just as a matter of its own choice.

How better could our nine justices “preserve the integrity and independence of the federal judiciary” than by voluntarily embracing a practice of rotating off the Supreme Court bench to other duties after 18 years, so as to lessen the role of politics and elections in their selection?