Bloomberg Law
Feb. 23, 2021, 9:00 AM

Supreme Court Term Limits—Here’s the Best Option

Tyler Cooper
Tyler Cooper
Fix the Court

Before President Joe Biden’s U.S. Supreme Court bipartisan reform commission begins its work, Reps. Ro Khanna (D-Calif.) and Don Beyer (D-Va.) have indicated they’ll introduce a bill to limit future justice’s service to 18 years and allow appointments in the first and third years of every presidential term.

This popular proposal to routinize appointments and ensure jurists no longer serve Methuselan tenures keeps the court as a nine-member body, although perhaps not right away. Since this plan is forward looking, term limits would not apply to the current nine, but new term-limited justices would still be appointed in 2021, 2023, 2025 and so on. That might lead to a temporarily expanded Supreme Court, which seems more likely to be found constitutional than telling Justices Clarence Thomas (this year), Stephen Breyer (in 2023), and Chief Justice John Roberts (in 2025), and so on, to take a hike.

What’s clear is that Khanna and Beyer have chosen the best among several options for what may be the commission’s toughest sell: articulating the granular details of a transition from today’s court to one with a perfect rotation of nine justices each serving 18 years.

Why Is Nine a Magic Number?

Should this bill be enacted, Biden would have a 2021 appointment. But what if Breyer does not retire as expected? The court would operate with 10 justices, as it’s done in the past.

What’s more, it recently comprised an even number of justices, as the seat previously occupied by Justice Antonin Scalia was left vacant for more than a year. There’s a strong case to be made that an even number of justices encourages more limited holdings and increases cooperation among the liberal and conservative blocs, both generally desirable goals.

If, for some reason, it’s important to maintain nine as some magic number at all times, then there are alternatives that the commission could consider. One, proposed 16 years ago, would be to phase out the longest-tenured justice every two years and keep the panel hearing cases at nine. In other words, a new justice would be added to the court this year, and the longest tenured of the current ones, Thomas, would be moved to “senior status,” where he could, say, still vote on which cases to grant and pitch in when there’s a recusal. In 2023, another new justice would be added, and Breyer would be moved to senior status. And so on.

This would arguably be constitutional under the same justification as prospective term limits—in short, that the justices would not be removed from the “office” of justice, merely transferred to “senior status,” which exists in lower courts and is wholly the (constitutional) creation of Congress. One may imagine, though, that the current justices would be hostile to legislation that alters their own status, and it’s far from guaranteed that, if asked to rule, they’d agree the measure was constitutional.

Prof. Jack Balkin of Yale Law School has offered a less antagonistic version of this option. You’d have biennial appointments as above, but Congress would designate that appellate-jurisdiction cases only be heard by a panel composed of the nine junior-most justices, while original-jurisdiction cases would still be heard en banc by all Supreme Court justices. This might also lead to bristling from the elder justices, especially when recalling how few cases fall into the latter category.

A third option would delay the junior-most members of the court from hearing cases. In other words, Congress would postpone a newly appointed justice’s panel service until a seat opens. So if Biden gets appointments in 2021 and 2023, as above, those two justices would not start hearing cases until Justices Thomas and Breyer decide to step down (or pass away).

That may seem logical in the short term, but it’s a good bet that whoever is appointed in 2025 might wait a decade before Roberts, who today has the third-longest tenure, retires. This backlog would only grow over time, and it would create perverse incentives for the current nine, as it’d be up to each of them to choose when a replacement begins their Supreme Court career in earnest.

The last option requires the least attention. Anyone suggesting a constitutional amendment should go unheeded, as two-thirds of Congress and 38 states stand no chance of agreeing on anything at the moment. So we have to get creative, and the Khanna-Beyer proposal looks the most promising.

The Supreme Court reform commission could not come at a better time: Faith in the judiciary is waning, but an apolitical reform proposal, staggered 18-year terms, is increasingly popular. Turns out, though, that getting from Point A to Point B may require as much consideration as Point B itself.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Tyler Cooper is the senior researcher at Fix the Court, a non-partisan organization focused on increasing transparency and accountability at the U.S. Supreme Court. He has previously worked on Capitol Hill and to protect voting rights.

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