Tenure Limits for Justices Can Still Achieve Political Insulation

While the subject of term limits for US Supreme Court justices has been around for decades and was endorsed by the Presidential Commission on the Supreme Court early in Biden’s presidency, it took a direct recommendation from the president himself to elevate the idea to broader public discourse—the power of the bully pulpit.

For many, the recommendation may be caught in the current set of controversies created by the Roberts Court with decisions that blew up longstanding precedents—including on abortion, the role of executive agencies, and giving presidents near-complete immunity for any actions within a broad definition of official performance. But the idea of term limits long preceded this court.

The Framers gave justices the equivalent of life tenure—service during good behavior—for a few reasons. First, they believed it would give justices protection against political interference, guaranteeing their independence.

Second, they thought the guarantee of a lifetime salary—more money than most lawyers could earn in private practice—would broaden the pool of qualified people who otherwise might shun the bench. And the guarantee of lifetime income would lessen the temptation for bribery or other corrupt action by justices.

But the Framers also made clear that the judicial branch, if formally equal to the other two branches, was clearly supposed to be far more constrained. Article I, on Congress, is twice as long as Article II, on the executive—which in turn is twice as long as Article III, on the judiciary.

It’s not just length and number of specified powers. The Constitution gives the Supreme Court limited original jurisdiction and Congress the power to add to it if it wishes, along with the power to decide the court’s size and to create other lower courts.

There is no mention of judicial review or anything to suggest that the Supreme Court would have anything close to the veto power of the president over legislation, or the power of Congress to override the veto as the last word. Congress can impeach and remove justices for high crimes and misdemeanors; the court has no comparable power over Congress.

In today’s world, the reality is different. Our politics have become polarized and tribalized and passing legislation or acting together on policy has become more difficult. As our partisan divisions have widened, the incentive for presidents and their partisans to use the court to prevail even if they lose future elections has grown.

And the justices chosen by recent presidents haven’thesitated to seize more power over policy and over the other branches to fill the vacuum caused by tribal-driven gridlock and by presidential executive actions taken when Congress fails to do so.

Presidents and their allies in Congress now view Supreme Courtvacancies largely or entirely through a partisan and ideological lens. Choosing justices who are guaranteed to vote in ways their partisan advocates want is paramount; choosing young nominees who would serve on the court for decades after their nominators and confirmers are gone is a certainty.

And protecting their justices from anything that would weaken them, force them to resign, or to be impeached and removed from office is a given. At the same time, bending rules and norms to keep vacancies from being filled by the partisan enemy has become the norm.

The precedent of a single, 18-year term for the Comptroller General of the US has shown that independence and insulation from political pressure doesn’t require a lifetime tenure. With law firm stipends such that a first-year associate who has clerked for a Supreme Court justice makes far more than a justice, the idea that pay for a lifetime is an incentive to want to serve in the judiciary is clearly farcical.

And a single, 18-year term means that automatically disqualifying anyone over 55 or 60 as too old, which has sharply reduced the pool of the best nominees, would be a thing of the past.

With staggered terms, so that each president would have two vacancies to fill in a four year presidential term, the imbalance caused by actuarial anomalies—where some presidents can fill two, three, or more vacancies and others are shut out—would disappear.. This would give us a court that would more closely mirror the country’s overall tenor.

And the temperature surrounding confirmation of justices would be sharply reduced. Over time, it might even mean justices more aware of the limited role they’re supposed to play in our constitutional system.

Can term limits be enacted without a constitutional amendment? I believe the answer is yes—service through good behavior can be filled after 18 years with movement to a special appeals court, an existing appeals court, or via senior status. Either way, it’s an idea whose time has come.

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

Norman J. Ornstein is senior fellow emeritus at the American Enterprise Institute.

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