Americans Deserve a High Court That’s in Tune With the Majority

Since overturning Roe v. Wade in 2022, the US Supreme Court has largely ruled in ways that put it far to the right of most Americans. Seventy-five percent of Americans (and 89% of Democrats) opposed the recent ruling granting former President Donald Trump presumptive immunity, for example, according to a 2024 academic poll.

So it’s no surprise, based on my own research and polls, that public approval of the court has plummeted and public receptiveness to its reform has grown, particularly among Democrats.

In response to Dobbs, the Trump immunity case, and other rulings, President Joe Biden recently announced a series of reform proposals targeting the court. One of these is a call for term limits for its justices.

This reform is popular and sensible. If we were designing a judiciary from scratch, lifetime tenure for justices wouldn’t be on the list. All other democracies that have been founded after ours have age or term limits for their high-court judges. The US stands alone in affording our justices the luxury of lifetime tenure.

Biden’s age has made the fitness of elderly elected officials an important issue. We should be having the same conversation about the nine individuals who make critical—and unaccountable—rulings on issues involving medical technology, the internet, social media, the rights of women, LGBTQ+ rights, and other topics of great salience to younger generations.

Probably then it’s no surprise that term limits are hugely popular, with around 70% of Americans supporting some sort of term limits for the justices, based on last week’s YouGov poll results.

The Founders couldn’t have anticipated these issues. A century ago, justices typically served around 15 years. Today, with longer lifespans, it’s not uncommon to see justices serving 30 years or even more. The current longest-serving justice, Clarence Thomas, aged 76, has been on the bench nearly 33 years—if his tenure were a person, it might be married, perhaps with a mortgage or kids.

Even the newer justices have been on the court for decades: Chief Justice John Roberts is 69 years old and has been on the court for over 18 years, meaning that today’s college students have essentially only known the conservative jurisprudence of the Roberts Court.

Under the current system, justices can not only linger on the court for decades, but also strategically time their retirements to hold their seat open for their own party to fill. If enough justices do this consistently, it can lead to locked-in seats by either party, a phenomenon that can lead to an ideologically skewed court—like the current court is now.

Justice Anthony Kennedy’s retirement during Trump’s first term allowed Trump to appoint Brett Kavanaugh, a former Kennedy law clerk, as his replacement. Doing so ensured Kennedy’s seat remained in Republican hands for at least Brett Kavanaugh’s entire tenure. Kavanaugh was 53 years old when he was named, so it’s possible he could serve 30 years or so, given the average lifespan for a wealthy American.

Conversely, when Justice Ruth Bader Ginsburg stayed on the court through President Barack Obama’s two terms, despite calls for her retirement, her death allowed Trump to appoint her successor, further shifting the court’s balance and “locking in” that seat with the appointment of Amy Coney Barrett, then 48 years old. All of this means the court will be controlled by appointments of one party—in this case the Republican Party—potentially for decades to come.

Eighteen-year term limits can address this issue of ideological lopsidedness. By capping service, term limits eliminate the incentive for justices to game their retirements for good or for bad. Under 18-year term limits, Ginsburg’s replacement would have been named by Obama, while Kennedy’s by George W. Bush. In this sense, term limits ensure vacancies respond to the preferences of the people—who vote for the Senate and for the president—and not to the justices’ own preferences.

Biden’s proposed 18-year term limits also would ensure each president can make two Supreme Court nominations per term, creating a fairer system. This would prevent scenarios where one president appoints three or four justices in a single term (like Trump did) while another appoints none (like Jimmy Carter did), thereby maintaining a closer connection between the court’s composition and the will of the people.

As the White House roughly alternates in control between Democrats and Republicans, so too would appointments to the court, reducing the likelihood of an ideologically imbalanced court.

Of course, term limits aren’t a panacea for all that ails the court. They won’t fix all ethics scandals, and they won’t force the justices to recuse themselves when they have conflicts such as an enforceable ethics code would. They won’t limit the court’s ability to nullify congressional legislation, like some jurisdiction stripping plans would.

Maybe more importantly, they won’t fully counteract what many Democrats see as an ideologically extreme court —one that many on the left fear is focused on kneecapping the administrative state, expanding gun access, and rolling back voting rights.

This issue probably would be better addressed by Democrats embracing court expansion, which has no bipartisan support for obvious reasons and overall is a less popular and more controversial fix.

No, term limits won’t fix these issues, at least not in the short run. What term limits can do, with enough time, is deescalate political fighting over court confirmations and, more importantly, bring the court’s composition in closer correspondence to the electorate. This should, over time, help rein in ideologically extreme rulings, such as Dobbs or the Trump immunity case.

No matter your politics, this is an outcome that’s probably better than the status quo: over time, Republicans gain from the reduced likelihood of an extremely liberal lopsided court, while Democrats gain from the reduced likelihood of a court that’s lopsided in the conservative direction.

This is because of the consistent, periodic timing of appointments under term limits. Again, this isn’t a quick fix. But, like a regimen of healthy eating and exercise, term limits would gradually help rein in the court’s excesses.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Maya Sen is professor at Harvard Kennedy School. Her research interests include law, political economy, race and ethnic politics, and statistical methods.

Write for Us: Author Guidelines