After Roe’s overturning, Americans are demanding Supreme Court term limits

Originally published by The Conversation.

Following the Supreme Court’s landmark ruling in Dobbs v. Jackson Women’s Health Organization overturning half a century of abortion rights under Roe v. Wade, nearly two-thirds of Americans want fundamental court reform, specifically term limits for Supreme Court justices.

Indeed, on July 25, 2022, Democrats introduced a bill that would allow a new justice to take the bench every two years and spend 18 years in active service.

The majority that overturned Roe was possible only because of the current system in which justices serve for life and are therefore able to choose when and whether to step down.

Justice Amy Coney Barrett owes her seat to Justice Ruth Bader Ginsburg’s refusal to retire under a Democratic president and her subsequent death under a Republican.

Justice Brett Kavanaugh is on the court because of Reagan appointee Justice Anthony Kennedy’s decision to step down under a GOP administration. Justice Neil Gorsuch was appointed after conservative Justice Antonin Scalia happened to die after President Donald Trump took office.

The author of the opinion in Dobbs, Justice Samuel Alito, took his seat when Republican Justice Sandra Day O’Connor chose to leave under President George W. Bush.

Justice Clarence Thomas – the leader of the court’s conservative majority – has served on the high court for over three decades and is there only because liberal icon Justice Thurgood Marshall refused to retire under a Democratic president and subsequently died with a Republican in office.

Sign up for The Fulcrum newsletter

All federal judges in the U.S., including Supreme Court justices, enjoy life tenure.

Under Article 3 of the Constitution, justices cannot be forced out of office against their will, barring impeachment. This provision, which followed the precedent of Great Britain, is meant to ensure judicial independence that allows judges to render decisions based on their understandings of the law – free from political, social and electoral influences.

Our extensive research on the Supreme Court shows life tenure, while well intended, has had unforeseen consequences.

It skews how the confirmation process and judicial decision-making work and causes justices who want to retire to behave like political operatives.

Problems with lifetime tenure

Life tenure has motivated presidents to pick younger and younger justices.

In the post-World War II era, presidents generally forgo appointing jurists in their 60s, who would bring a great deal of experience, and instead nominate judges in their 40s or 50s, who could serve on the court for many decades.

And they do.

When Thomas was appointed at age 43 by President George H.W. Bush in 1991, he famously said he would serve for 43 years. There are another dozen years until his promise is met, should he choose to keep it at all.

Partisanship problems

Justices change during their decades on the bench, research shows.

Justices who at the time of their confirmation espoused views that reflected the general public, the Senate and the president who appointed them tend to move away from those preferences over time. They become more ideological, focused on putting their own policy preferences into law.

Other Americans’ political preferences tend to be stable throughout their lives.

The consequence is that Supreme Court justices may no longer reflect the America they preside over.

This can be problematic.

If the court were to routinely stray too far from the public’s values, the public could reject its dictates by refusing to follow the court’s decisions. The Supreme Court relies on public confidence to maintain its legitimacy. In addition to public resistance to its decisions, if the court lost its legitimacy, lower court judges and legislative and executive branch actors might resist implementing the court’s rulings.

Life tenure has also turned staffing the Supreme Court into an increasingly partisan process, politicizing one of the nation’s most powerful institutions.

In the 1980s and 1990s, Supreme Court nominees could generally expect broad, bipartisan support in the Senate. Today, judicial confirmation votes are almost strictly down party lines.

Public support for judicial nominees is likewise shaped by partisanship. Simply put, Democrats are much more supportive of nominees appointed by Democratic presidents, and Republicans are much more supportive of nominees appointed by Republican presidents.

Life tenure can turn supposedly independent judges into political players who attempt to time their departures to secure their preferred successors – and this may have factored into Justice Stephen Breyer’s decision this year under President Joe Biden, a Democrat.

Biden appointed Justice Ketanji Brown Jackson, one of Breyer’s former clerks, to replace him.

The proposed solution

Many Supreme Court experts have coalesced around a solution to these problems: staggered 18-year terms with a vacancy automatically occurring every two years in nonelection years.

This system would promote judicial legitimacy, they argue, by taking departure decisions out of the justices’ hands.

It would help insulate the court from becoming a campaign issue because vacancies would no longer arise during election years. Indeed, even if a justice died during an election year, a lower court judge could be temporarily elevated as a replacement. Term limits would also preserve judicial independence by shielding the court from political calls to fundamentally alter the institution.

Partisanship would still tinge the selection and confirmation of judges by the president and Senate and ideological extremists could still reach the Supreme Court. But they would be limited to 18-year terms.

Instituting life tenure

The U.S. Supreme Court is one of the world’s few high courts whose members have life tenure.

Almost all democratic nations have either fixed terms or mandatory retirement ages for their top judges, including the United Kingdom.

Except for Rhode Island, all U.S. states either have mandatory retirement ages or let voters choose when judges leave the bench through judicial elections.

Even before Dobbs, polling consistently showed a large bipartisan majority of Americans supported ending life tenure for Supreme Court justices.

This view comes amid reports of eroding public confidence as the court routinely issues decisions down partisan lines on the day’s most controversial issues.

Although judges’ ideology has long influenced Supreme Court decisions, today’s court is unusual because all the conservative justices are Republicans and all the liberal justices are Democrats. In the past, it was not uncommon to have liberal-leaning justices who were appointed by Republican presidents, and conservative-leaning justices who were appointed by Democratic presidents.

In April 2021, President Biden formed a committee to examine reforming the Supreme Court, including term-limiting justices.

Some argue that to end the justices’ life tenure would require a constitutional amendment necessitating approval from two-thirds of both houses of Congress and three-fourths of U.S. states. But there is a way to enact term limits short of amendment.

The Constitution does not speak of “life tenure” per se. It states only that justices serve “during good behavior” and does not specify the type of work that justices will do.

As a result, ordinary legislation – such as that introduced this week – could be passed by a majority of both houses of Congress that would require justices to take “senior status” at the end of their 18-year terms.

Senior status is already an option for justices who qualify for it and wish to step down from their Supreme Court duties. Senior status allows them either to retire or to sit on a lower court with undiminished salary for the remainder of their careers.

All that is needed, these proponents argue, is a change in the existing retirement statute that requires senior status after 18 years on the court.

And while there are questions over whether term limits via statute are constitutional, or whether the Supreme Court justices who would be affected by them are the appropriate body to make such a determination, the larger question is whether there is or will be the political will in Congress to enact them.