Background

Article III Section 1 of the U.S. constitution outlines that Supreme Court justices are to “hold their offices during good Behaviour”, a phrase which framer Alexander Hamilton in Federalist No. 78 explained means “for life”. A justice can either die on the bench, retire, or be removed from office after committing an impeachable offense; otherwise, justices can remain on the Court as long as they please. Hamilton argued that life terms promote an independent court free from the influences of the political branches or the public, but his logic has been called into question numerous times throughout American history. Even before the constitution was ratified, Anti-Federalists attacked life terms for making the judiciary too independent, and calls for limiting life tenure emerged throughout the 19th and 20th centuries. This debate has rekindled within the last decade, raising questions about the Supreme Court’s alignment with principles of democratic governance. Two pieces of legislation, one from the House of Representatives and one from the Senate, were proposed in the previous session of Congress that would impose term limits for justices.

Senate bill 4706 and House bill 8500, proposed by Democratic Senator Sheldon Whitehouse (RI) and Democratic Representative Hank Johnson (GA-4), would restrict the terms of Supreme Court justices to 18 years. They would also regulate the appointment process: each president would nominate only two justices in the first and third years of his/her term. Finally, they introduce a special brand of “senior status” to the Supreme Court. Justices that finish their 18-year term would retire from active duty, but still hold their office and receive full compensation. Proponents of term limits argue that relegating justices to senior status allows these statutes to skirt the constitutional provision permitting justices to serve for life. However, many proponents would also support a constitutional amendment to achieve the same ends. 

Arguments for term limits

Those who seek to enact term limits on Supreme Court justice center on three different observations/arguments: 

1. The Court has lost its institutional legitimacy in the eyes of the public
2. The Court’s current membership, its decisions, and the selection process have become excessively partisan
3. All other high-functioning democracies have high courts with term limits

Proponents of the bills believe the Court has grown increasingly out of touch with the American public in recent decades, and they cite a number of polls to back that assertion. They claim that most Americans say the Supreme Court is disconnected from modern values and beliefs, believe the Court makes its decisions based on the political leanings of justices rather than the rule of law, and lack confidence in the institution. A specific example of distrust in the Court is the widespread disagreement with the Court’s recent decision in Dobbs v. Jackson Women’s Health Organization, the ruling that overturned Roe v. Wade, and removed the constitutional right to abortion. They further emphasize that term limits have support across the political spectrum: 82% of Democrats, 57% of Republicans, and 51% of Independents called for term limits in one poll. 

Why do Americans feel this way? Proponents point to two facts. Article II Section 2 of the U.S. constitution gives the president the power to appoint justices to the Supreme Court, who then must be vetted and confirmed by the Senate. Five of the nine justices on the current Court (all ideologically conservative) were appointed by presidents who lost the popular vote. Proponents argue, then, that such presidents, who do not reflect the will of the majority of Americans, will in turn nominate unrepresentative justices. This is part of a larger argument around political representation. Secondly, justices rarely die on the bench anymore and are serving longer terms than ever before. Since 1970, the average tenure of a justice has been 26.1 years—a significant increase from the average of 14.9 years before 1970. With less frequent vacancies on the Court, the appointment process, which acts as a democratic check on the Court’s membership, is less effective. 

The second argument put forth by proponents of these bills is that term limits will help depoliticize both the ideological makeup of the Court as well as the appointment process. Donald Trump appointed three justices to the Court in just one term, while others like George W. Bush, who served two terms, only appointed two; Jimmy Carter appointed none. Supporters posit that giving each president only two spots to fill during a four year term would create a more equitable system that would help to ideologically balance the Court as party control of the White House changes, and ensure it more closely resembles public opinion. Proponents also contend that a more predictable system would put less pressure on each pick, serving to dial down the fervor of confirmation hearings, which have been a major source of partisan conflict.

Finally, supporters of term limits argue that they would keep America in tune with other Western democracies who have similar policies. 46 states and Washington D.C. have term limits for members of their high courts; three others have age limits, and only Rhode Island permits life tenure. In these systems, after serving a term, a justice must be reappointed or re-elected, processes that work as democratic checks. Across the globe, countries like Australia, New Zealand, Israel, and the U.K. require justices to retire at age 70. Germany allows its federal judges to serve only 12 years. 

Arguments against term limits

Those who oppose the enacting term limits make three primary arguments: 

1. Term limits would threaten the Court’s stability and independence
2. Term limits would increase political polarization
3. Term limits are unconstitutional. 

The doctrine of stare decisis, which means “let the decision stand” in Latin, generally governs the Court’s jurisprudence. The legal model of judicial decision making argues that Court decisions are based on stare decisis and an adherence to precedent (previous rulings), the constitution, and applicable laws, which promotes stability and predictability. Opponents believe that the more regular shifting of the Court’s ideological makeup would wreak havoc on the stability of its legal doctrine. As an example, one study using computer simulations, assuming moderately loyal justices with no deference to precedent, estimated that if term limits existed from the beginning of the U.S., Roe would have been overruled and reinstated three times in just a few decades. Opponents believe that a regular influx of new justices will cause a fluctuation of precedent and turn the Supreme Court into a lawmaking body.  

Furthermore, although many polls show that a majority of Americans support enacting term limits, opponents would argue that the Supreme Court was never meant to reflect the will of the majority. Instead, as Alexander Hamilton argued in Federalist No. 78, the Supreme Court’s greatest asset is its independence from the influence of the political institutions and the public. They say that the Supreme Court is meant to base its decisions on the Constitution, federal statutes, and, ultimately, the rule of law; therefore, supporters of term limits, who want to rein in an “out of touch” Supreme Court, are ignoring the very principles the institution was founded on.

Opponents also argue that enacting term limits would intensify political polarization. For one, they say that an increase in turnover would merely increase the frequency of confirmation hearings and the partisan debate that accompanies them. They contend that presidential elections, with the knowledge that two Supreme Court seats would be tied to each four-year term, could devolve into a referendum on which individuals should be nominated to the Court. They point out that two-term presidents would be able to select 44% of the Court, and if a single party strung together three or four presidential terms, they could swiftly gain ideological control of the Court. All of this is assuming that the appointment process would go over smoothly, too. Opponents also argue that regularly staggered term limits would give a Senate controlled by the party opposite the president incentive to indefinitely delay or block justice confirmations, leaving the Court shorthanded. 

Finally, opponents argue that the proposed legislation would be unconstitutional. They argue that the relegation of retired justices to a new form of senior status runs afoul to the constitutional provision allowing justices to serve “in good behavior.” Only a constitutional amendment could enforce term limits on Supreme Court justices, which is impractical in today’s political climate. Moreover, they suggest that allowing Congress to make such reform statutorily could empower it to alter the federal judiciary in other dangerous ways.