For the first time in history, a sitting president has publicly endorsed the idea of term limits for U.S. Supreme Court justices. President Joe Biden proposed an 18-year term for justices, after which they would transition to different roles. This initiative aims to regularize the appointment process, with each president appointing two justices per four-year term.
Historical context offers valuable insight into the potential impact of such a reform. For instance, had this plan been in place in recent decades, the current makeup of the Supreme Court would be markedly different. Instead of the existing 6-3 Republican supermajority, there would now be a 6-3 Democratic supermajority, reflecting the last 18 years of presidential election outcomes.
Certainly, one of the most significant implications of term limits is that it would tie the control of the court more closely to success in national elections. The present situation, where we are three justices away from a court that reflects an equal impact from past presidents, could have been avoided. The last time such a disparity was seen was in 1857, a period marked by the infamous Dred Scott v. Sanford decision, which significantly damaged the court’s legitimacy.
Looking ahead, the age and future careers of justices might be impacted. Presidents could potentially appoint older justices who would not remain in the role for several decades, and younger appointees would leave the court having substantial careers afterward. These changes, however, are minor compared to the structural shifts that would accompany term limits.
One notable challenge in implementing term limits is ensuring that each president gets their intended two appointments per term, despite the Senate confirmation process. A Senate controlled by the opposition may obstruct appointments, demanding ideologically compatible nominees or refusing to confirm any nominees at all, as exemplified by Merrick Garland’s prolonged wait for a Senate hearing. Various groups, including Biden’s Supreme Court Commission, have identified Senate obstruction as a considerable hurdle.
Possible solutions include bypassing Senate confirmation or penalizing obstructionist tactics, but these measures are ineffective in light of deep bipartisan divides. The lack of cooperation in governance, as highlighted by Justice Samuel Alito, demonstrates the complexities of enacting procedural reforms in a deeply polarized political environment.
Moreover, while some experts argue that term limits could be instituted via statute rather than constitutional amendment, there is consensus that they cannot be applied retroactively to sitting justices. This interpretation suggests current justices would retain their positions for life, which would temporarily increase the size of the court when new appointments are made under the new system.
Ultimately, recalibrating the Supreme Court’s terms is an endeavor fraught with procedural and political challenges. Still, it represents a long-term strategy to align the judiciary more closely with democratic principles and electoral outcomes.
Read more on this topic by Kermit Roosevelt, professor at the University of Pennsylvania’s Penn Carey Law School, in the article “Recalibrating Supreme Court Terms Is the Long Game to Fairness”.