The longstanding debate over Supreme Court term limits has resurfaced, with President Biden joining the conversation. While term limits enjoy broad bipartisan support, the traditional view suggests that imposing them would necessitate a constitutional amendment due to Article III’s “shall hold their Offices during good Behaviour” clause, historically interpreted as lifetime tenure. However, experts argue that no amendment is needed, but political resolve is critical.
An article on Above the Law explores how this reform could be implemented through statutory measures. Congress has the established power to set the number of justices and to regulate the appellate jurisdiction of the Supreme Court. Historically, Congress has altered the number of justices multiple times. Thus, a statutory solution could involve creating a system where justices serve staggered terms, potentially without capping the total number of justices.
This approach leverages congressional authority to make “Exceptions” and “Regulations” to the court’s jurisdiction, as outlined in Article III of the Constitution. The landmark case Ex Parte McCardle permitted Congress to strip the Court’s appellate jurisdiction, establishing a precedent for such regulatory practices.
Notably, political analysts like Ian Millhiser warn of practical challenges. Since the Supreme Court itself would judge the constitutionality of such term limits, their inherent conflict of interest might stymie the reforms. However, advocates argue that the potential constitutional challenge is not a sufficient reason to avoid pursuing necessary changes.
Substantive discussions also warn against unwise strategies like court-packing, which could destabilize the judiciary. While expansions have occurred in history, they are seen as emergency measures rather than long-term solutions. The fear is that any court-packing attempt could initiate a destructive cycle of each party expanding the court to gain a temporary advantage.
Ultimately, while the path to Supreme Court term limits is politically arduous, it does not necessarily require a constitutional amendment. Reformers must be prepared to engage in strategic hardball, aligning political will and congressional action to resolve the institutional issues plaguing the highest court.
To read more, visit the full article on Above the Law.