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Supreme Court Term Limits

https://portside.org/2023-07-09/supreme-court-term-limits
Portside Date:
Author: Alicia Bannon, Michael Milov-Cordoba
Date of source:
Brennan Center for Justice

Introduction

Today’s Supreme Court has assumed a degree of power and importance that would have been unrecognizable in the founding era.footnote1_n4tdqay1 A recent cascade of ethics scandals has laid bare a system in which justices wield tremendous power for decades with little accountability,footnote2_kmjz7zx2 while the Court’s rulings are increasingly unmoored from democratic values and the principle of judicial restraint.footnote3_9fx2mfp3 At the same time, polarization among the political parties and the justices themselves has dramatically increased the partisan stakes of the confirmation process, leading to a broken system.footnote4_rnxtcu94 Public trust in the Court is at a historical low.footnote5_dpe8dhg5

For all these reasons, there are growing calls for reform. Proposals range from creating an ethics code to expanding the Court to stripping its jurisdiction. One of the most popular options would also be among the most transformative: establishing 18-year terms and regularized appointments for justices. Under this system, justices would sit in staggered terms of active service on the Court, such that a new vacancy would open every two years. Each president would have two, and only two, appointments during a four-year term.

This paper explains how such a reform would work, why it would bolster the Court’s legitimacy, and how to transition from the current system. It also discusses how the core elements of this reform could be adopted by statute, consistent with the Constitution, by establishing the role of “senior justice.” Among other things, senior justices would hear cases by designation on the lower courts, step in to hear cases on the Supreme Court in the event of a recusal or unexpected vacancy, and assist with the management and administration of the federal courts. This framework is similar to the existing system of senior judges that has been in place for more than a century and has applied to the justices since 1937.footnote6_wsk5z0z6 However, rather than leave the timing of senior status up to the justices’ discretion, under this reform Congress would create a schedule by which justices assume senior status automatically after 18 years of active service on the Court.

The case for reform is compelling. On average, justices today sit on the bench for more than a decade longer than their predecessors did as recently as the 1960s.footnote7_r09tt7o7 Several justices now on the Court are likely to hold office over as many as nine presidential terms. Unbounded tenure allows a single justice to shape the direction of the law for generations, without regard for the evolving views and composition of the electorate. It puts justices in an elite and unaccountable bubble for decades. No other major democracy in the world provides life tenure for high court judges who hear constitutional cases.footnote8_i7k0meb8

With today’s intense ideological polarization, every Supreme Court vacancy also takes on monumental stakes. Exercises of raw power have replaced long-established constitutional norms, upending the confirmation process.footnote9_yz0rwp09 This constitutional hardballfootnote10_u3j35qy10 was illustrated most notoriously when Republican senators refused to consider President Barack Obama’s March 2016 nomination of Merrick Garland, claiming that it was too close to the presidential election, only to rush through a vote for Amy Coney Barrett in October 2020, when early voting in that year’s presidential election had already started.

One result of these dynamics has been that presidents have had starkly disparate imprints on the Court. President Donald Trump appointed three justices in four years, whereas Presidents Bill Clinton, George W. Bush, and Barack Obama each appointed two justices in eight years. This wide variation, as well as its impact on the development of American law, is impossible to square with principles of democratic legitimacy.

By contrast, with 18-year active terms and regularized appointments, every president would have an equal imprint on the Court during a four-year term. Such a system would enhance the democratic link between the Court and the public, making the institution more reflective of changing public values while preserving judicial independence.

This reform would also encourage a better-functioning and less politically charged confirmation process. Shorter terms would lower the stakes of each nomination, while regularized appointments would both encourage compromise and allow for public accountability in the event of confirmation impasses. Regularized appointments would also eliminate the destabilizing impact of late-term vacancies because an unexpected death or retirement would not create a new seat to fill; instead, a senior justice would temporarily step in. And this reform would ensure that no individual holds largely unchecked power for decades at a time.

Broad swaths of Americans support term limits for justices. Since 2022, several polls have found that more than two-thirds of the public are in favor of this reform, including more than three-quarters of Democrats, two-thirds of independents, and more than half of Republicans. This bipartisan support is long-standing: since at least 2014, polls have consistently shown supermajority support for term limits (see appendix).

A broad array of scholars likewise support term limits. When the National Constitution Center convened separate groups of conservative and progressive scholars in 2020 to draft their ideal constitutions, both proposed 18-year terms.footnote11_970dnke11 The Presidential Commission on the Supreme Court, which was created by President Joe Biden to evaluate options for Supreme Court reform, described term limits as enjoying “considerable, bipartisan support.”footnote12_i7hgym712

The Constitution gives Congress wide latitude to determine the Supreme Court’s structure and responsibilities. Congress should use its power now to reform the Supreme Court.

An Increasingly Unaccountable Court

In Federalist 78, Alexander Hamilton famously described the Supreme Court as the “least dangerous branch” of government.footnote1_tidldre13 At the time, it was an accurate description. In its first decade, the Supreme Court heard an average of just six cases per year.footnote2_nij05hk14 The first chief justice, John Jay, stayed on the bench for only five years and declined to be renominated after serving as governor of New York because, he said, the Court lacked “energy, weight, and dignity.”footnote3_k9u00n115 In 1803, Chief Justice John Marshall asserted the power of judicial review in Marbury v. Madison. Yet the Supreme Court did not strike down another federal law as unconstitutional for more than 50 years, when, in Dred Scott v. Sandford, it notoriously barred Congress from freeing slaves within federal territories.footnote4_p25wsr416

But times have changed. As the size, scope, and power of the federal government expanded, first with the post–Civil War Reconstruction Amendments and then again in the 20th century with the rise of the administrative state and the civil rights movement, so too did the Supreme Court’s power and national importance.footnote5_ndadep017 This has altered the incentives of justices to stay in office and the incentives of presidents and senators in the confirmation process. And it has encouraged the political branches to cast aside governing norms to secure seats on the Court — particularly as both the Court and the political parties have grown increasingly polarized.footnote6_gm7i6x518 Together these trends have led to a dysfunctional system.

Excessive Terms

Modern justices are serving unusually long terms.footnote7_pzomw1r19 For the first 180 years of U.S. history, justices served an average of approximately 15 years. But in the 1970s, the average tenure began to balloon. In recent years, justices have served an average of 26 years — equivalent to six and a half presidential terms.footnote8_cu3dcrw20 Justices appointed at around the age of 50 — which includes a supermajority of justices on the Court today — could serve as long as 35 years.footnote9_x3bp3hq21 In the future, justices are likely to serve even longer, as the average age of retirement continues to climb while the average age of appointment keeps declining.footnote10_el275lq22

These lengthening terms mean justices leave a substantially greater imprint on the Court and the country than did their predecessors. At the same time, the elected branches — and the people they represent — have far fewer opportunities to shape the Court’s direction.footnote11_7jgk8oo23 Today a 30-year-old has seen only 10 new justices join the Court; 60 years ago, a person of the same age would have seen twice as many.footnote12_nc6kxz824

Generational seats also leave individual justices with too much power for too long, giving nine people control over an entire branch of government for decades. This is especially concerning because justices, by design, enjoy a rarefied and largely unaccountable position. As Chief Justice John Roberts once acknowledged while working as a White House attorney, “The Framers adopted life tenure at a time when people simply did not live as long as they do now. A judge insulated from the normal currents of life for twenty-five or thirty years was a rarity then, but is becoming commonplace today.”footnote13_gf345x625 The trend toward lengthening terms also heightens the risk that justices will stay on the Court after their capacity as jurists begins to decline.footnote14_5h2ed0926

Strategic Retirements

Justices routinely time their retirements to create vacancies for ideologically aligned presidents to fill. These so-called strategic retirements enable justices to lock in their jurisprudence on the Court for multiple generations — a practice inconsistent with the principle that it is the values of the public, not of individual justices, that should shape the future direction of the law.footnote15_h1rywe827 Strategic retirements also reinforce the view that justices are simply extensions of the political parties that appointed them. As former federal judge Michael McConnell observed in testimony before the Presidential Commission on the Supreme Court, the current system “puts unseemly pressure on sitting justices to time their retirement to permit a president of their political party to name the replacement.”footnote16_5i57tlr28 The practice also opens the door to inappropriate horse trading between justices and the presidents who would fill their seats.footnote17_bhyi00729 Prior to announcing his retirement, for example, Justice Anthony Kennedy reportedly lobbied President Trump to include then judge Brett Kavanaugh’s name on his list of potential Supreme Court nominees.footnote18_fs63rco30

Strategic retirements have become the norm since the 1960s.footnote19_ksd7rq931 The last time a justice retired when a vacancy would likely result in the appointment of a justice with an opposing ideology was more than 30 years ago, when Justice Thurgood Marshall stepped down due to declining health.footnote20_dwgfpfc32 President George H. W. Bush appointed Justice Clarence Thomas to replace him.

A Dysfunctional Confirmation Process

Due in large part to lengthening terms and strategic retirements, the Supreme Court confirmation process has become highly dysfunctional. Nominees are increasingly confirmed on near party-line votes regardless of their underlying merit or commitment to values such as equal justice.footnote21_pjmf14x33 Chief Justice Roberts is the only sitting justice to have received the support of a majority of senators not in the nominating president’s political party.footnote22_671cg8a34 The confirmation process has likewise become awash in dark money,footnote23_y52w57y35 which creates risks of conflicts of interest and contributes to an appearance of politicization.footnote24_8t6r2cy36

The long-standing Senate norm of granting every nominee a hearing and a vote as part of the Senate’s constitutional responsibility to provide advice and consent on judicial appointments has been replaced with exercises in raw power.footnote25_oxgrz3q37 These dynamics were on full display during the confirmation battles over the Supreme Court seats vacated by Justices Antonin Scalia and Ruth Bader Ginsburg, who both died unexpectedly during a presidential election year. By refusing to give Merrick Garland a hearing or a vote in 2016, the Republican Senate majority broke a norm of more than 100 years to evaluate every Supreme Court nominee’s fitness for the office.footnote26_8lg3t5r38 (Prior to this incident, the last time the Senate refused to take action on a Supreme Court nominee during a legislative session was shortly after the Civil War.)footnote27_z90nnyp39 The Republican majority ended up holding the seat open for more than a year — until after Trump was elected and assumed the presidency.footnote28_eb59s2r40 Four years later, when Justice Ginsburg died 45 days before Election Day,footnote29_0a1qn8j41 President Trump and Senate Republicans rushed to fill the seat, holding a confirmation hearing for Amy Coney Barrett while early voting was already under way.footnote30_t6wwjig42

While the constitutional brawls over the vacancies of Justices Ginsburg and Scalia were particularly hostile, even less bitter confirmation fights have been characterized by vitriol and threats of escalation.footnote31_xx95sau43 If existing dynamics continue, appointing justices during periods of divided government may simply become impossible.

A Lack of Democratic Legitimacy

Checks and balances are deeply rooted in our constitutional system. With respect to the judiciary, the Constitution achieves this in large part by giving elected officials — the president, with the advice and consent of the Senate — the power to appoint justices, so that over time the Court’s membership reflects prevailing public values.footnote32_7fl9byz44 For example, proponents of the Seventeenth Amendment, which provides for the direct election of senators, advocated for its passage in part so that the public could more directly hold the judicial branch accountable during a period when it was perceived to be captured by corporate interests.footnote33_5cp0qdu45

But this connection between the Court and the public has grown tenuous, undercutting the Court’s democratic legitimacy.footnote34_fsug73246 For instance, it is increasingly common for presidents to have no opportunity to fill a single Supreme Court seat during a four-year term. Up until President Jimmy Carter, this was a rare occurrence: from President George Washington through President Gerald Ford, only 5 out of 47 presidential terms were without any Supreme Court appointments. But in the 12 presidential terms since then, there have already been 4 with no appointments.footnote35_n2yr65q47

There are also wide disparities in the number of seats individual presidents have had the opportunity to fill, contributing to stark imbalances on the Court. Beginning with President George H. W. Bush, who appointed the longest-serving justice currently on the bench (Justice Thomas), Republicans have won four out of nine presidential terms and won the popular vote only twice. But Republicans have appointed six of the current nine justices.footnote36_x3gonfn48 This supermajority has already had a transformative effect, handing down rulings on issues including civil rights, gun rights, and abortion that disproportionately harm vulnerable communities and are unmoored from the values of the American public.footnote37_t8zz4br49 Not surprisingly, public confidence in the Court has plummeted.footnote38_4rc2l4b50

A Global Outlier

Among democracies, the United States stands virtually alone when it comes to the tenure of its justices. Today no other major democracy gives lifetime seats to judges who sit on constitutional courts.footnote1_io423ag51 This includes both common law countries, such as Ireland, New Zealand, and South Africa, and civil law countries, such as France, Germany, and Spain, as well as former U.S. territories whose constitutions were heavily influenced by the U.S. Constitution, such as the Philippines.footnote2_j090ru552 Even democracies that previously granted constitutional high court judges unbounded life tenure, including Australia, Canada, and the United Kingdom, have since abandoned this practice.footnote3_gb3063753 Nearly all countries with specialized constitutional courts impose fixed terms for the judges who sit on them, most of which are nonrenewable.footnote4_gu3ixpt54

Virtually every state court system has likewise rejected life tenure. Forty-seven states require that their supreme court justices serve for fixed terms, subject to reelection or reappointment processes. Most states have mandatory retirement ages. Only three provide justices with indefinite terms, but two of them — Massachusetts and New Hampshire — impose age limits. Only Rhode Island grants its high court justices life tenure without an age limit.footnote5_c5ap3ge55 Federal bankruptcy and magistrate judges likewise serve fixed terms.footnote6_wotbeh956

Term limits are also widely used in the United States for other important offices. George Washington famously set a two-term norm for the presidency by leaving office after eight years. When Franklin D. Roosevelt broke the tradition with a four-term presidency, the country responded by passing the Twenty-Second Amendment to limit presidents to two terms. Thirty-seven states impose term limits on governors, 15 states impose term limits on legislators, and 9 of the 10 largest cities in the nation impose term limits on mayors.footnote7_r784hq457 Not surprisingly, large, bipartisan majorities of Americans likewise support term limits for Supreme Court justices.footnote8_h734yrc58

Reform by Statute: Design and Structure

Congress can address many of the Supreme Court’s structural shortcomings and help restore public confidence in the Court by passing a statute that establishes an 18-year active term for justices and a regularized process for creating and filling vacancies. Specific proposals vary.footnote1_ysf2nfb59 But at its core, this reform has two components that work in tandem: restructuring life tenure for justices into two phases (active service and senior service) and regularizing appointments so that there are two vacancies per four-year presidential term.

Restructuring Life Tenure: The Active/Senior Justice Model

Article III of the Constitution creates a system of life tenure for justices by providing that they “shall hold their Offices during good Behaviour.”footnote2_horf01s60 Under the active/senior justice model, Supreme Court justices retain life tenure, but their tenure is divided into two distinct periods: a phase of active service lasting 18 years and a senior phase lasting for the remainder of a justice’s life term.footnote3_u1tclfc61 This framework would apply to both associate justices and the chief justice. After 18 years, a new chief justice would be appointed and the prior chief would assume senior status.footnote4_yjlxbhd62

Under this system, senior justices would no longer regularly decide cases on the Court’s docket. Instead they would be tasked with performing other important judicial duties, including sitting by designation to hear cases in the lower federal courts, assisting the chief justice with management and administration of the federal judiciary, and stepping in to hear cases on the Supreme Court’s docket upon a recusal by an active justice or in the event of an unexpected vacancy. Some versions of this proposal further provide that senior justices would continue to hear cases falling under the Supreme Court’s original jurisdiction.footnote5_1y68mxs63

This model builds off an existing system that has applied to lower court judges for more than a century and to Supreme Court justices for nearly 90 years.footnote6_47ou1cl64 Under federal law, judges, including Supreme Court justices, who reach age 65 with 15 years of service, or who otherwise qualify on the basis of their age and years of service, become eligible to either retire from their judicial office or retire from active service.footnote7_rj31p0465 (They can also continue service as an active judge.) Judges who retire from their office are freed from the performance of judicial duties, can pursue other employment, and receive an annuity for life equal to their salary at the time of retirement.footnote8_xikfi1y66 By contrast, judges who retire from active service (on the lower courts they are called “senior judges”) retain their office, continue to perform judicial duties, and receive their salary with ongoing increases and cost-of-living adjustments.footnote9_7hzgdw867

To maintain senior status, judges must either carry a reduced annual caseload in an amount equivalent to three months of work by an active judge or perform other substantial judicial duties not involving courtroom participation.footnote10_fto4nra68 With respect to the Supreme Court, federal law authorizes the chief justice to designate justices who have retired from active service to sit on lower federal courts.footnote11_axtdoo169 Justices regularly do so. For example, since retiring from active service in 2009, Justice David Souter has sat by designation in the First Circuit and heard more than 500 cases, and Justice Sandra Day O’Connor regularly heard cases on federal appeals courts for more than a decade after her retirement in 2006.footnote12_f1rtmld70 Justices who have retired from active service also regularly maintain chambers and employ law clerks.footnote13_85lq55071

The active/senior justice model largely tracks this existing framework but provides a fixed schedule for the assumption of senior status rather than leaving the timing to the justices’ discretion. It also provides senior justices with a more extensive set of responsibilities than does the current system.footnote14_c1dignt72 As discussed later, Congress has the constitutional power to make these changes by statute because, as in the current system, justices would continue to hold their judicial office during good behavior.

Regularizing Appointments: Two per Presidential Term

The other main component of this reform is regularized appointments, with a Supreme Court seat opening in the first and third years of a president’s term. With 18-year terms and nine active justices, Supreme Court appointments can be fully regularized so that each president fills two, and only two, seats every four years.footnote15_x8ojn5873

This reform creates predictability in the event of a death or premature departure by a justice from the bench. Such occurrences should be relatively rare given that justices would be in active service for only 18 years; it has been more than half a century since a justice served for less than 18 years. Still, the implementing statute can provide that the most recently elevated senior justice would step in under such circumstances until there is a scheduled vacancy.footnote16_5ztggo874 (If no senior justice is available, there would be no changes until the next scheduled appointment.)

The thornier concern is how to harmonize a regularized appointment process with polarized politics and recurring periods of divided government. In light of Senate Republicans’ obstruction of Merrick Garland’s nomination and subsequent threats of further escalation over Supreme Court appointments, the possibility of Senate impasses looms large.footnote17_uposcbf75

There are good reasons to believe a regularized appointment system would help disincentivize partisan gamesmanship. First, term limits reform would reduce the benefits of obstruction because Supreme Court seats would no longer offer the promise of a multigenerational imprint on the Court.footnote18_m3zdzuo76 Second, obstruction during periods of divided government would become increasingly politically costly as the public would come to expect that each president should be able to fill two Supreme Court seats per term. Obstruction would exact a particularly heavy toll if the statute is structured so that seats become vacant on the first day of each new Congress. In that case, the opposition would need to block a nominee for at least two years (and often four) in order to deny the president a seat. While sitting senators have expressed an openness to blocking Supreme Court nominees from the opposing party for the duration of a presidential election year, far fewer have expressed willingness to do so for an entire congressional or presidential term.footnote19_he6c2rl77 And in the event that senators did chart a course for four years of obstruction on a purely partisan basis, voters would have an opportunity to voice their opposition during the midterms.

Establishing two vacancies per presidential term would also create greater potential for compromise than is generally available under the current system, reducing incentives for obstruction. Knowing ahead of time the number and timing of vacancies that will occur over a president’s term creates opportunities for bargaining over nominees or settling on consensus choices during periods of divided government. For example, should a president’s term begin with divided government, an impasse over confirmations could be resolved by appointing one justice supported by the president’s party on the condition that the president nominate a compromise justice to fill the next available vacancy.footnote20_gxe0mug78 Unexpected vacancies late in a president’s term would no longer be destabilizing because they would not create a new seat to fill.

Finally, to further induce senators to act on a president’s nomination, Congress could accompany this reform with “fast-track” statutory mechanisms to help ensure that nominees receive an up-or-down vote on the Senate floor.footnote21_94r6dxf79 Fast-track legislation is a common vehicle that Congress uses to prevent certain measures from being indefinitely obstructed. It does so by requiring automatic discharge from committee or allowing for a privileged motion to discharge from committee if a measure is not reported out after a fixed period, granting the measure privileged access on the floor of the House or Senate, setting limits on time for debate, and prohibiting legislators from proposing floor amendments.footnote22_l6crce980 Congress has a long history of passing such procedures to speed up recurring must-pass legislation, such as trade agreements, budgets, and military base closures.footnote23_5b497yw81 Supreme Court confirmations, particularly under a regularized appointment system, fit this mold.

Such a statute could provide that, upon the nomination of a candidate by the president to fill a vacancy on the Court, the nomination must be received by the Senate and referred to the Senate Judiciary Committee within a stipulated period. The Senate Judiciary Committee would have a fixed number of days to act on the nomination. Failure to act would lead to an automatic discharge from the committee, with the nomination placed on the Senate calendar and a floor vote required within a set period.footnote24_r751qd382 These elements would ensure that every nominee at least receives a full vote by the Senate — a marked improvement over the status quo.footnote25_9lazal183

To avoid potential constitutional objections, fast-track procedures typically include a provision that they can be changed “at any time, in the same manner and to the same extent” as a chamber’s internal rules.footnote26_2efg54t84 Thus, the Senate could override this fast-track system by changing its rules. Nevertheless, fast-track legislation has often established procedural norms that are hard in practice to override, serving as a bulwark against inaction.footnote27_w95h1c585

Additional Design Features

Term limits reform also presents an opportunity to improve current practices on the Court related to recusal and conflicts of interest. The implementing statute, for example, should provide that in the event a justice steps aside from hearing a case due to a conflict of interest, the most recently elevated senior justice would step in. This would address current disincentives for justices to recuse themselves from cases because of concerns that their recusal will leave the Court with fewer than nine members.footnote28_t812n0186 Being able to tap into a pool of senior justices to hear cases would also help to ensure that recusals do not cause the Court to drop below quorum, leaving it unable to hear a case.footnote29_nu2gxp287

The implementing statute could also be structured to alleviate concerns about conflicts of interest stemming from justices’ postretirement activities. Under a term limits system, some justices may decline senior status and look to pursue activities related to law or politics after leaving active service.footnote30_4dgwzqp88 The Constitution grants Congress broad authority to regulate the ethical conduct of justices in order to mitigate concerns posed by such activities,footnote31_ux57lxi89 including by imposing a bar on political fundraising or on pursuing outside employment during justices’ tenure and for a set period after leaving public service.footnote32_c4egw8s90

Congress could set these rules directly by statute or require the Court to adopt a code of conduct — something the Court has declined thus far to do voluntarily despite broad support for binding ethics rules among both the public and other judges.footnote33_byi7ozr91 The code of conduct that applies to lower court federal judges imposes a variety of ethical constraints, including limits on judges’ charitable, financial, and fiduciary activities. Most of these constraints apply explicitly to senior judges.footnote34_org2njm92 Applying similar rules to the Supreme Court would substantially alleviate the risks of conflicts of interest.footnote35_ngk77f093

Benefits of Reform

On their own, either 18-year term limits or regularized appointments would help address much of the structural dysfunction that is damaging the Supreme Court’s public legitimacy — and the implementing statute should have a strong severability provision so that each reform can stand on its own.footnote1_xsujgta94 But the two are mutually reinforcing. Working together, they would be transformative.

Term limits combined with regularized appointments would enhance the democratic link between the Court and the public. Under this system, every presidential term would carry equal opportunity to shape the Court’s direction. No individual president would have the chance to install a majority on the Court, nor would a political party be able to lock in a particular ideology for generations over a short period. In addition, adopting these reforms would remove current incentives to appoint increasingly younger justices so as to secure power for a longer period.footnote2_o9xl1ir95 It would also eliminate opportunities for justices to strategically retire, returning power over the trajectory of the Court to the public via their representatives, as the Constitution envisions.

These reforms would put the United States in the company of every other major democracy in the world. They would also bring the Court closer to its historical norms with respect to both the length of justices’ tenure and the number of appointments per presidential term: since the founding, the mean, median, and modal number of Supreme Court vacancies has been approximately two per presidential term.footnote3_dfgynxs96

More frequent turnover on the Court would also be likely to improve judicial decision-making. Social science research shows that organizations greatly benefit from fresh voices and changes in interpersonal dynamics and that entrenched leadership in organizations, especially small ones in which a few individuals wield great power, often leads to poorer decision-making.footnote4_0u6pasl97 This concern is especially pronounced for Supreme Court justices, who hold one of the most elite and powerful positions in the world and whose decisions regularly affect the daily lives of ordinary Americans, often in profound ways. While working as a White House attorney, Chief Justice Roberts expressed similar concerns, writing that “setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges. Both developments would, in my view, be healthy ones.”footnote5_jpa27mn98

Regular turnover would also create more opportunities to bring diverse life experiences to the Court. By many measures, the Supreme Court is deeply unrepresentative of both the American public and the legal profession. For example, there has never been an Asian American or Native American justice nor an openly LGBTQ+ justice.footnote6_q7loaju99 Among the sitting justices, all but one attended Harvard or Yale Law School, and only one is from the western United States. Justice Jackson is the only justice in history to have worked as a public defender.footnote7_3g0arna100 With more frequent appointments, presidents can bring greater diversity to the Court so that it better embodies the values of the American public. Courts that reflect the diversity of the communities they serve inspire public confidence, enhance deliberations among judges, produce a richer jurisprudence, and create role models for underrepresented groups.footnote8_fetlqpa101

One critical question is whether imposing an 18-year term of active service would undermine the Court’s judicial independence. Alexander Hamilton famously defended life tenure as necessary to protect the Court from the political branches of government.footnote9_b511ha7102 But, as borne out by the experience of every other major democracy in the world, there is no evidence that long, nonrenewable terms pose a threat to judicial independence.footnote10_rgxxrzi103

The power to decide cases until death or retirement is not the only, or even the primary, basis for the Court’s independence. The Court’s independence relies on a range of factors, including public perceptions of its legitimacy, other branches’ respect for its role and decisions, and its own stewardship of its constitutionally assigned powers. Inasmuch as the details of a justice’s term of service impact the Court’s overall independence, what is most critical is that justices’ tenure on the Court and lifetime of financial compensation do not depend on winning the ongoing approval of the political branches of government.footnote11_leniwie104 Under the active/senior justice model, justices would retain their job security and salaries regardless of how they might rule in cases. There would be no greater opportunity for pressure or political retaliation than under the existing system.footnote12_s2eygoj105

In fact, there is good reason to believe that the current system actually threatens judicial independence: strategic retirements and raw power politics during the confirmation process invite attacks on the Court’s legitimacy and contribute to public perceptions that the Court is a partisan institution.footnote13_3mg80i6106 The judicial branch has neither an army nor the power of the purse; it relies on public legitimacy to underwrite its power and independence. Dysfunction in the existing system can therefore threaten the Court’s functional independence.footnote14_nex4wrc107

Some critics also contend that regularized appointments would add to the politicization of the Court by making Supreme Court picks a more prominent issue on the presidential campaign trail.footnote15_ym55d9y108 Of course, candidates already do campaign about Supreme Court nominations. As a candidate, Trump released a list of potential Supreme Court picks, and both he and Hillary Clinton promised to appoint justices with specific positions on Roe v. Wade.footnote16_a7k1xll109 Biden promised to appoint a Black woman to the Court.footnote17_64jfhu8110 Indeed, regularized appointments are likely to reduce the electoral salience of potential nominations because such a system ensures that no single president can lock in power for multiple generations.footnote18_14b17it111 Even a two-term president whose party controls the Senate for all eight years (a situation that is unprecedented in the modern era)footnote19_xm8z9ul112 could appoint at most four ideologically aligned justices, which is not enough on its own to command a majority on the Court.

For similar reasons, the concern that term limits would destabilize the law due to justices more regularly cycling on and off the Court is also unpersuasive. Under the current system, there is no limit on the number of vacancies a president may fill, and there are strong incentives to use brief periods of unified party control to reconfigure the Court. By contrast, regularized appointments limit the imprint that any one president will have on the Court and encourage compromise during periods of divided government.

The Constitutionality of Implementation by Statute

The reforms described in this paper can be implemented by statute. Doing so is consistent with the Constitution’s text and structure; with the ways in which Congress has long regulated the Court, including the existing system of senior judges; and with the values of judicial independence that animate Article III and its Good Behavior Clause.

Article III, which structures the judicial branch, is sparsely detailed. Section 1 provides that “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” and that “the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” Section 2 enumerates the types of cases and controversies to which “the judicial Power shall extend,” identifies the types of cases under the Supreme Court’s original jurisdiction, and establishes that “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Section 3 discusses punishment for treason.

The value of judicial independence is embedded in this constitutional design. By providing that judges hold their offices during good behavior, the Constitution prevents Congress from ousting judges from office other than through the high bar of impeachment and removal. And by prohibiting the diminution of judicial salaries, the Constitution guards against retaliation by the political branches for unpopular decisions.footnote1_lrzzitp113

At the same time, while Article III mandates that there be a Supreme Court vested with “the judicial Power of the United States,” it says remarkably little about how the Supreme Court should operate. Rather, it leaves it to Congress to make significant determinations regarding the Court’s structure and powers pursuant to Article III and its authority to “make all Laws which shall be necessary and proper.”footnote2_baxljlj114

Congress has repeatedly exercised this authority. For example, it has changed the number of justices on the Court six times, with sizes ranging from 5 to 10 justices.footnote3_17clw0b115 It also has substantially changed the Court’s jurisdiction.footnote4_orr8hk4116 It was not until 1891, for example, that Congress granted the Court the power of discretionary appellate review.footnote5_yigsus5117 Congress has also altered the duties of justices. For instance, when Congress created circuit courts through the Judiciary Act of 1789, it did not create corresponding circuit judges. Instead, Congress mandated that Supreme Court justices sit alongside local district judges to hear cases in a practice known as circuit riding.footnote6_le5ph4p118 In 1803, in Stuart v. Laird, the Supreme Court upheld circuit riding as constitutional, against an objection that the justices had never been separately appointed as circuit judges.footnote7_nrarlaq119 Congress maintained this practice for more than 100 years until it became untenable for the justices to fulfill their duties on both circuit courts and the Supreme Court.footnote8_9td3kws120

With respect to the implementation of regularized appointments, Congress would be acting well within the bounds of its authority under Article III and the Necessary and Proper Clause. Regularizing appointments simply sets a schedule for filling vacancies on the Supreme Court. It creates new judicial seats in the first and third years of a president’s term that a president may then fill, with the advice and consent of the Senate, pursuant to the president’s ordinary authority under the Constitution’s Appointments Clause. And when a justice dies or retires from the Court, the seat is eliminated. Since Congress can create new seats on the Court and eliminate seats not currently occupied, it can also set a schedule for doing so.

One potential question is whether an early departure from the Court poses issues with respect to the president’s appointment power, because under most versions of this proposal the president would not have an immediate opportunity to appoint a replacement.footnote9_z9aztgq121 Critically, however, under this circumstance no vacancy would exist for the president to fill: the existing seat would be eliminated upon the justice’s departure and a new seat would be created only according to the schedule set by Congress.

Likewise, Congress has the power to establish 18-year terms for justices so long as the justices continue to “hold their Offices during good Behaviour” after leaving active service, as required by Article III. The active/senior justice model comports with the Good Behavior Clause by providing that after 18 years, justices retain their judicial offices as senior justices with modified responsibilities.

The active/senior justice model is similar to a long-standing system of senior judges that is more than a century old and that has applied to Supreme Court justices since 1937. The main difference is that under the reform, justices take senior status pursuant to a fixed schedule rather than at a time of their choosing. This distinction has constitutional relevance, however, only if being required to take senior status is akin to being forced from office, such that the justices would no longer “hold their Offices during good Behaviour.”footnote10_z8dugfy122

But the Supreme Court ruled nearly 90 years ago that senior judges continue to hold their judicial offices. In 1934, in Booth v. United States, the Court considered a predecessor of the senior judge statute that applied to lower court judges. The Court held that assuming senior status does not constitute a removal from office. Considering a challenge by a senior judge to a reduction in salary, the Court concluded that senior judges could not have their salaries reduced because a senior judge “does not surrender his commission, but continues to act under it.”footnote11_k5dhbn0123 In other words, senior judges remain judges within the meaning of Article III. The Court explained that “Congress may lighten judicial duties, though it is without power to abolish the office or to diminish the compensation appertaining to it.”footnote12_m60h35k124

Although Booth concerned lower court judges, its reasoning applies with equal force to Supreme Court justices because Article III’s Good Behavior Clause applies to “Judges, both of the supreme and inferior Courts.”footnote13_fgmsl7a125 While imposing a schedule for when justices take senior status leaves them with less discretion over the content of their dockets, it is Congress, not the justices themselves, that holds the power to define the contours of justices’ dockets and duties.

While the Supreme Court has not squarely addressed the constitutionality of senior judges since Booth, it has affirmed its underlying rationale. In Nguyen v. United States, a 2003 case challenging the constitutionality of an appellate panel consisting of an active circuit judge, a senior circuit judge, and an Article IV territorial judge from the Mariana Islands, the Supreme Court held that the panel lacked the authority to hear the appeal due to the presence of the Article IV judge. But in doing so, the Court confirmed that both the active and senior judge were, “of course, life-tenured Article III judges who serve during ‘good behavior’ for compensation that may not be diminished while in office.”footnote14_wqz74fe126 Lower courts have also entertained challenges to the constitutionality of the senior judge system since Booth, including several in recent years. They have consistently held that the senior judge system is constitutional and that arguments to the contrary are without merit.footnote15_ryrpcxg127

Moreover, there is a long-standing tradition of justices who have retired from active service sitting by designation on lower federal courts, including Justices Potter Stewart, Lewis F. Powell Jr., and Byron White and, in recent years, Justices O’Connor and Souter.footnote16_9tzeh9t128 Since 1937, retired justices have heard more than 1,300 cases while sitting as judges on the courts of appeal and district courts.footnote17_3pc37w6129 If it were the case that justices surrender their judicial office when they retire from active service on the Court, then the practice of justices sitting by designation would itself be unconstitutional. As the Court noted in Booth, “It is scarcely necessary to say that a retired judge’s judicial acts would be illegal unless he who performed them held the office of judge.”footnote18_ln0845k130

Some critics have objected to senior justices by suggesting that the Constitution creates a separate “office” of Supreme Court justice that is distinct from the office of lower court judge.footnote19_4bycr82131 According to this argument, in order to retain their office within the meaning of the Good Behavior Clause, justices must perform duties related to their Supreme Court office. But Congress has broad power to define the content of the office of a justice, including, as Booth recognized, to “lighten judicial duties” over the course of a judge’s tenure and, as Stuart recognized, to require justices to serve on lower courts. Indeed, under the current system, justices who have retired from active service can sit by designation on lower courts but are barred from sitting on the Supreme Court.footnote20_f9i7odd132 Notably, the active/senior justice model contemplates a much more significant role for senior justices: They would continue to hear Supreme Court cases when the Court is shorthanded due to a justice’s recusal or in the event of a premature departure from the bench. They would potentially also hear cases falling under the Court’s original jurisdiction.

To be sure, Congress could not “lighten” justices’ duties out of existence altogether such that they held office in name only. Nor could Congress single out an individual justice for lightened duties or target justices appointed by a president of a particular political party. But these actions are forbidden because they are assaults on the values of judicial independence enshrined in the Constitution’s structure. By contrast, the active/senior justice model targets no justice individually and does not impinge on the justices’ decisional independence.

Separately, some critics have objected to senior justice models on the theory that elevating an active justice to senior justice without a separate appointment violates the Constitution’s Appointments Clause.footnote21_il2zlhe133 However, under Supreme Court precedent, a change in duties does not require a new appointment so long as the new duties are sufficiently germane to those of the original position. This “germaneness” requirement under the Appointments Clause is quite broad. For example, in Weiss v. United States, the Court held that a commissioned military officer could be designated as a military judge without a separate appointment.footnote22_5fjzal2134 It is far from clear that prospectively changing justices’ duties implicates the Appointments Clause. Regardless, because federal law already authorizes retired justices to engage in the duties with which senior justices would be tasked under the active/senior justice model, it appears clear that a separate appointment is not required.footnote23_udfyi7b135

Finally, some critics point to historical practice in objecting to the active/senior justice model. But while it is true that justices have been able to sit in active service until they choose to step down, the fact that earlier generations did not see a need to restructure “good behavior” tenure into active service and senior service does not mean that Congress lacks the authority to do so today. The Constitution leaves Congress with wide latitude to define the Court’s structure and the justices’ duties as required by the needs of the day, constrained by structural protections that preserve judicial independence. As recognized by dozens of prominent constitutional scholars, the active/senior justice model is fully consistent with the Constitution’s text and structure, as well as with longstanding precedent about the operation of senior judges.footnote24_7m221af136

Transitioning from the Existing System

There are various ways that Congress could implement the transition from the current system to an active/senior justice model with regularized appointments.footnote1_oojbugg137

One option would be to implement the reforms prospectively, applying the active/senior justice model only to justices appointed after the reform takes effect.footnote2_i6k2ern138 To set the transition in motion, Congress would impose 18-year active terms for all new justices and establish a system of regularized vacancies, creating openings in the first and third years of each president’s term going forward, regardless of when any of the current justices retire. This would effectively decouple vacancies from appointments until all of the current justices have retired from office or taken senior status, at which point a full transition would have taken place.footnote3_wtjpj7d139

There are strong arguments for this prospective approach. Applying term limits to current justices risks weakening broad public support for the reform. A prospective approach also avoids any potential objections to changing sitting justices’ duties after their appointment.

One significant impact of this transition option would be on the Court’s size. It is hard to predict whether and how the adoption of a regularized cycle of new appointments would influence the justices who took office prior to the reform. It could motivate some justices to retire earlier than they might otherwise to maintain the Court’s size at nine members. However, it is likely that during the transition the Court would exceed nine members, and there could be times when there is an even number of justices. Assuming that the reform took effect with the next presidential term, in 2025, and assuming that the current justices stayed on the Court until they turned 85 — the outer bounds of what is likely — the Court would reach 14 active justices for brief periods and have a long interval in which the number of active justices ranged from 10 to 13. Under these assumptions, a full transition would take up to 35 years, at which point the Court would return to nine seats.footnote4_x3ee9yd140

Importantly, this increase in size would not offer a windfall to either political party: going forward, every president would have two, and only two, Supreme Court seats to fill in a four-year term. Moreover, the experiences of the 13 U.S. federal circuit courts as well as high courts in other democracies suggest that the Supreme Court would function effectively throughout the transition period.footnote5_t3os4xr141 All but one of the circuit courts have at least 11 active judges.footnote6_jl92hb7142 Although circuit courts decide most cases in panels, they also meet on occasion as a full court (“en banc”).footnote7_sasqpmp143 Among the world’s most populous democracies, the United States is one of only a few countries with a high court of general jurisdiction composed of fewer than 11 justices.footnote8_l9i3gw7144 The high court in France has 11 members, South Africa has 11, Belgium 12, Ireland 12, Spain 12, the United Kingdom 12, Austria 14, South Korea 14, Italy 15, Japan 15, Germany 16, Sweden 16, and Denmark 18.footnote9_i0f1gei145 Some of these courts use a panel system, which the U.S. Supreme Court could adopt to accommodate a temporary expansion and potentially as a permanent reform.footnote10_999gstd146

Likewise, courts with an even number of judges are common in other countries, and the U.S. Supreme Court itself has functioned with an even number of justices in the past, including for 14 months after Justice Scalia’s death.footnote11_ja2qip2147 During this period, the justices publicly acknowledged that having an even number of justices forced them to work harder to find common ground in order to avoid leaving an issue or case undecided.footnote12_j3hje9c148 Greater incentives to moderate would be a positive development during a moment of institutional change.

Alternatively, Congress could consider other transition options that prioritize different values. For example, Congress could choose to implement 18-year terms retroactively. Under this proposal, Congress would establish a schedule for future appointments to the Court. But rather than allowing the current justices to retire or take senior status when they choose, the statute would provide that the longest-serving current justice must either retire or take senior status at the time of the next scheduled appointment.footnote13_8tpun0j149 The process would repeat until all current justices had cycled off active service.footnote14_0lzr5p9150 This approach offers the shortest path to a full transition.footnote15_ow84eel151

Another option, a phase-in proposal, is prospective but would have the president appoint new justices only when current ones retire or take senior status. This would maintain the Court’s size at nine seats by delaying the introduction of regularized appointments.footnote16_8907wr8152 As a result, during the transition period, the number of appointments per presidential term would vary. Current justices would continue to have an incentive to engage in strategic retirements, and presidents would continue to have differing imprints on the Court until the transition is complete. A similar option would implement regularized appointments during the transition period but deem only the nine longest-serving justices on the Court as active justices in order to maintain the Court’s size at nine seats.footnote17_r1y06oh153

A Long-Term Campaign for a Constitutional Amendment

A question frequently raised about term limits and regularized appointments is whether it would be preferable to adopt such a reform by constitutional amendment. This presents a false choice. The best course of action is to pursue both an immediate statutory fix and a long-term campaign for a constitutional amendment.

A constitutional amendment has several advantages. Most significantly, it would ensure the long-term stability of reform. Statutes can be undone by future congresses, creating opportunities for partisan gamesmanship. The Supreme Court, either now or in a future form, could buck precedent and undo all or part of the reform. By contrast, an amendment would institutionalize Supreme Court reform so that it would not be subject to congressional or judicial whim.

An amendment would also present opportunities to implement a broader range of reforms to the confirmation process. There is a wide set of options worthy of consideration. For example, to address the risk of obstruction in the advice-and-consent process, an amendment could provide that a nominee is deemed confirmed if the Senate does not vote within a specified period. It could also change the number of Senate votes required for confirmation, or specify that if one nominee is rejected, the number of Senate votes required to confirm a subsequent nominee is reduced, or it could create a backup institution to consider nominees in the event of an impasse.footnote1_o2gflo4154 An amendment could also address the nomination process — for example, establishing a commission to vet potential candidates and generate a short list for the president, similar to systems that have worked well in several states and other countries.footnote2_lwr6m1p155

A statutory solution, however, is not only consistent with a constitutional amendment campaign but complementary to it. Passing reform by statute presents an opportunity to build public support for a substantial institutional redesign that could later be codified in the Constitution.

Equally important is the urgency of the current moment. The Court is facing a crisis of public confidence — and of democratic legitimacy. It would be a mistake to delay an opportunity to reset and rebuild the Supreme Court.

Conclusion

Unbounded Supreme Court tenure is an outdated relic. It gives individual justices the power to shape the direction of the law for generations and has warped the incentives of political actors and justices alike. The result is a Court with an increasingly tenuous link to the American public.

Implementing 18-year active terms and regularized appointments offers a path forward. Every president would have the same opportunity to shape the trajectory of the Court during a four-year term in office. Justices would no longer be able to tap their own successors through strategic retirements. The constitutional crises that are generated by unexpected vacancies late in a president’s term would be a thing of the past. A predictable appointment schedule would lower the temperature on judicial confirmation battles.

To be clear, there are a number of important areas warranting Supreme Court reform. Congress should, for example, directly address the justices’ recent ethical lapses.footnote1_sktjko7156 But term limits reform addresses long-standing dysfunctions on the Court while squarely responding to its current deficit in democratic legitimacy. And it is one of the rare policies that consistently garner broad bipartisan support.

A majority of Americans believe that U.S. democracy is “in crisis and at risk of failing.”footnote2_i87ar96157 The Supreme Court should be a stabilizing force and a democratic bulwark. Instead, it is facing its own crisis of public trust.footnote3_re9cpkw158

It is time to reform the Supreme Court.

Appendix

Endnotes

Alicia Bannon is the director of the Judiciary Program at the Brennan Center for Justice, where she works to realize a fair and inclusive judicial system that protects fundamental rights, democratic values, and the rule of law. An experienced constitutional lawyer and expert on the courts and access to justice in the legal system, Bannon leads a team of lawyers and researchers engaged in policy advocacy, litigation, legislative campaigns, research and analysis, and public education. Bannon also serves as the editor-in-chief of State Court Report, a Brennan Center publication focused on state courts and state constitutional law.

Bannon is the author of numerous nationally recognized reports and pieces of legal scholarship, and she regularly writes and comments for media outlets such as the New York Times, Washington Post, Atlantic, Slate, MSNBC, and NPR.  She has provided testimony, briefings, and policy advice to lawmakers across the country and taught as an adjunct professor at NYU School of Law and Seton Hall Law School.

Bannon has held numerous prior roles at the Brennan Center, including managing the Center’s redistricting project and serving as the managing director of the Democracy Program. She first came to the Brennan Center as a Liman Fellow and counsel in the Justice Program.

Prior to joining the Brennan Center, Bannon was a John J. Gibbons Fellow in public interest and constitutional law at Gibbons P.C. in Newark, New Jersey, where she litigated a wide range of civil rights cases. She clerked for the Hon. Sonia Sotomayor in the United States Court of Appeals for the Second Circuit and the Hon. Kimba M. Wood in the United States District Court for the Southern District of New York. Bannon received her JD from Yale Law School and graduated from Harvard College summa cum laude with a degree in social studies. Prior to law school, Bannon worked in Kenya and Uganda, managing impact evaluations of education and health interventions, and at the Center for Global Development in Washington, DC.

Michael Milov-Cordoba is a fellow in the Brennan Center’s Judiciary Program, where he focuses on state constitutionalism and promoting fair, diverse, and impartial courts. Prior to joining the Brennan Center, Michael served as a law clerk to the Hon. Alvin W. Thompson of the United States District Court for the District of Connecticut. Michael received his JD from NYU School of Law, where he served as the Senior Online Editor of NYU Law Review and was the recipient of the Gary E. Moncrieffe Award. During law school, Michael interned at Demos and the Texas Civil Rights Project and was a participant in the Racial Equity Strategies Clinic and the Civil Rights Clinic at NYU. He holds a master’s degree in Political Science from Columbia University and a bachelor’s degree, summa cum laude, in Law, Jurisprudence, and Social Thought from Amherst College.

The Brennan Center for Justice is a nonpartisan law and policy institute.

We strive to uphold the values of democracy. We stand for equal justice and the rule of law. We work to craft and advance reforms that will make American democracy work, for all.

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