Term limits for Supreme Court justices shouldn’t be a partisan issue. Limiting the amount of time that justices can serve — and, more importantly, ensuring that a president’s ability to name justices isn’t determined by sheer luck or partisan gamesmanship — is a matter of basic good governance. In fact, one of the early advocates for term limits was a co-founder of the conservative Federalist Society. Bipartisan commission after bipartisan commission has embraced the idea.
By Ruth Marcus
But this is 2024, which means that every proposal is immediately assessed through the distorting lens of politics. President Biden and other Democrats have come out for term limits, establishing a system under which each president would have the opportunity to name two justices.
Yet Biden and allies have wrapped that push in a broader critique that this court is unethical and dangerously out of touch; that its ruling on presidential immunity must be unwound; and that justices should be bound by an enforceable ethics code. The immunity decision was a travesty. An ethics code with no enforcement is hardly a code at all.
But Biden’s proposals, however justified, are ideologically tinged — and that has an unfortunate spillover effect on the debate over term limits. If Biden and Democrats are for limits, Republicans must be against. Thus, Senate Minority Leader Mitch McConnell (R-Ky.), writing in The Post, invoked Alexander Hamilton in support of his contention that life tenure for judges is “essential to an independent judiciary.”
That’s wrong. How do we know that lifetime tenure isn’t necessary to ensure judicial independence? Because only one state, Rhode Island, has set up its top court that way. Because the United States is the only major constitutional democracy without either a fixed term or a mandatory retirement age for its highest court.
Lifetime tenure was, it turns out, a structural flaw — a relic of a time when life was a lot shorter. As wise as the Constitution’s authors were, as sensible their intuition that judges require insulation from partisan and economic pressures, they didn’t foresee how the increase in average life spans would make the guarantee of life tenure an impediment to good government, not its facilitator. Average life expectancy at birth for a White male then was just 44 years.
No surprise, then, that justices are serving longer and longer terms. Until the late 1960s, the average term was around 15 years; since 1970, that number has creeped up to 26 years. That creates a twofold problem. First, longer tenures mean fewer vacancies. The stakes of each appointment grow ever more important — and ever more heatedly partisan.
Second — and, to me, the critical issue — the absence of predictable turnover means that some presidents may not get to name a single justice; others could fill three or more vacancies during a term. This haphazard arrangement is exacerbated by the now-standard practice in which justices try to time their retirements to guarantee that a successor will be chosen by a president of the same party.
Taken together, this means that, over time, the ideology of the Supreme Court can diverge dangerously from the public consensus. As Federalist Society co-founder Steven Calabresi wrote in a 2006 law review article, that can “contribute to the Court being out of step with the American people’s understanding for long periods of time.”
Testifying before the Biden Supreme Court commission, former federal appeals court judge Michael McConnell, a George W. Bush nominee, argued that with term limits, “the political balance of the Court would reflect the opinions of the people over time as expressed in their choice of presidents and senators, rather than the happenstance of health or accident or the strategic timing of the justices.”
Term limits wouldn’t be a panacea, and certainly not an immediate one. If they were imposed only prospectively, on justices not yet sitting, it would take a half-century, and maybe longer, before the new system was in place for all justices. That’s a long time to wait for a fix.
An alternative plan, proposed by a working group of the American Academy of Arts and Sciences, would create a hybrid under which currently serving justices would not be subject to term limits but newly elected presidents would receive their two nominations each, with the size of the court increasing temporarily in the interim, But even that transition period would take some 25 years.
And that leaves out the bedeviling question of how to get there. The most enduring and foolproof way would be a constitutional amendment, but that requires approval by a two-thirds vote of both houses of Congress and ratification by three-quarters of the states. In other words, not very likely.
An alternative would be enacting term limits through legislation, an approach that would be open to constitutional challenge and susceptible to being jettisoned by a subsequent congress — even in the event it could somehow make its way into law.
Meanwhile, as McConnell alluded to, one question about guaranteeing that each president gets to name two justices is how that would operate in the face of a Senate that refused to confirm nominees. Guaranteeing each president two nominees, McConnell warned, could only work if “the Senate became a rubber-stamp sideshow.”
Pardon me if I see the risks differently — not that the Senate will be supine but that, term limits or not, under the guidance of McConnell and his ilk, the body will simply refuse for partisan reasons to perform its constitutionally assigned role.
But this is all mostly just a sideshow. Term limits aren’t happening anytime soon. They weren’t before the latest developments — and now that they have become yet another partisan battleground, the chances are bleaker still.
