A vacancy sign hangs above the Supreme Court bench following reports this week that long-serving liberal justice Stephen Breyer will retire.
Names are already being thrown around in the media as to who will replace him, aided by helpful hints from President Joe Biden himself. But whoever it is can, depending on their age, expect a lengthy spell on the bench of the highest court in the land.
Precedent shows us that justices tend to grow old in the position. Breyer is one such example. When he joined the Supreme Court in 1994, he was an already very accomplished 55-year-old former law professor and appeals court judge. Now, at age 83, he is set to retire from the court at the end of the current term in June.
Supreme Court justices in the U.S. enjoy life tenure. Under Article 3 of the Constitution, justices cannot be forced out of office against their will, barring impeachment. This provision, which followed the precedent of Great Britain, is meant to ensure judicial independence, allowing judges to render decisions based on their best understandings of the law — free from political, social and electoral influences.
Our extensive research on the Supreme Court shows life tenure, while well-intended, has had unforeseen consequences. It skews how the confirmation process and judicial decision-making work, and causes justices who want to retire to behave like political operatives.
Problems with lifetime tenure
Life tenure has motivated presidents to pick younger and younger justices.
In the post-World War II era, presidents generally forgo appointing jurists in their 60s, who would bring a great deal of experience, and instead nominate judges in their 40s or 50s, who could serve on the court for many decades.
And they do. Justice Clarence Thomas was appointed by President George H.W. Bush at age 43 in 1991 and famously said he would serve for 43 years. There’s another 12 years until his promise is met.
The court’s newest member, Donald Trump’s nominee Amy Coney Barrett, was 48 when she took her seat in late 2020 after the death of 87-year-old Justice Ruth Bader Ginsburg.
Ginsburg, a Clinton appointee who joined the court at age 60 in 1993, refused to retire. When liberals pressed her to step down during the presidency of Democrat Barack Obama to ensure a like-minded replacement, she protested, “So tell me who the president could have nominated this spring that you would rather see on the court than me?”
Partisanship problems
Justices change during their decades on the bench, research shows.
Justices who at the time of their confirmation espoused views that reflected the general public, the Senate and the president who appointed them tend to move away from those preferences over time. They become more ideological, focused on putting their own policy preferences into law. For example, Ginsburg grew more liberal over time, while Thomas has become more conservative.
Other Americans’ political preferences tend to be stable throughout their lives.
The consequence is that Supreme Court justices may no longer reflect the America they preside over. This can be problematic. If the court were to routinely stray too far from the public’s values, the public could reject its dictates. The Supreme Court relies on public confidence to maintain its legitimacy.
Life tenure has also turned staffing the Supreme Court into an increasingly partisan process, politicizing one of the nation’s most powerful institutions.
In the 1980s and 1990s, Supreme Court nominees could generally expect large, bipartisan support in the Senate. Today, judicial confirmation votes are almost strictly down party lines. Public support for judicial nominees also shows large differences between Democrats and Republicans.
Life tenure can turn supposedly independent judges into political players who attempt to time their departures to secure their preferred successors, as Justice Anthony Kennedy did in 2018. Trump appointed Brett Kavanaugh, one of Kennedy’s former clerks, to replace him. A similar turn of events may occur if President Biden nominates Judge Ketanji Brown Jackson, a former Breyer clerk, to the current vacancy on the court.
The proposed solution
Many Supreme Court experts have coalesced around a solution to these problems: staggered, 18-year terms with a vacancy automatically occurring every two years in nonelection years.
This system would promote judicial legitimacy, they argue, by taking departure decisions out of the justices’ hands. It would help insulate the court from becoming a campaign issue because vacancies would no longer arise during election years. And it would preserve judicial independence by shielding the court from political calls to fundamentally alter the institution.
Partisanship would still tinge the selection and confirmation of judges by the president and Senate, however, and ideological extremists could still reach the Supreme Court. But they would be limited to 18-year terms.
[image_caption]Paul M. Collins Jr.[/image_caption]
Even England — the country on which the U.S. model is based — no longer grants its Supreme Court justices life tenure. They must now retire at 70.
Similarly, although many U.S. states initially granted their supreme court judges life tenure, this changed during the Jacksonian era of the 1810s to 1840s when states sought to increase the accountability of the judicial branch. Today, only supreme court judges in Rhode Island have life tenure. All other states either have mandatory retirement ages or let voters choose when judges leave the bench through judicial elections.
[image_caption]Artemus Ward[/image_caption]
In December 2021, the Presidential Commission on the Supreme Court of the United States released its report on Supreme Court reform, which examined term limits for the justices. Although the commission did not take a position on the merits of term limits, it did outline a variety of means by which they could be imposed, including through the constitutional amendment process and by congressional statute.
Ultimately, Congress, the states and the public they represent will decide whether the country’s centuries-old lifetime tenure system still serves the needs of the American people.
Paul M. Collins Jr. is a professor of legal studies and political science at the University of Massachusetts Amherst. Artemus Ward is a professor of political science at Northern Illinois University.
This article is republished from the Conversation. It is an updated version of a piece originally published in the Conversation on July 6, 2021.
I like the idea of the 18-year staggered terms but until the McConnell Doctrine was adopted in 2016 the life tenure system was actually working out well. The PBS Newshour pointed out that the average term for a Supreme Court Justice has been 17 years. Before COVID, term limits seemed like a necessity because we all assumed that life expectancies would continue to increase but as we have learned over the last two years that is no guarantee.
I have long advocated a two year, non-renewable, term for Supreme Court justices. Service on the court should be an interlude, in an otherwise distinguished legal career to which the justice should be able to return.
I like the 18 year staggered terms. I would add that the nomination must have Senate review in X amount of days to prevent another Garland …circus, fiasco, abomination…
The parties themselves can take blame for the partisan divide surrounding appointments, but that tidbit aside, I’d be happy to support term limits for Supreme Court Justices – for judges in general, actually, local, state and federal, and for the same kinds of reasons enumerated by the authors. Times and issues change, as do judges and their views. Of course, now that we’re a nation of 300+ million rather than the less-than-4 million of the 1790 census, it’s more and more difficult for a SCOTUS justice to represent anything like a consensus of the citizenry, and my bias is that it’s a point equally true of members of the House and Senate. I’d be happy to vote for term-limiting constitutional amendments at federal, state and county levels. Five 2-year terms, 4 3-year terms (mostly local boards and commissions, and perhaps some city councils), 3 4-year terms, and two 6-year terms for U.S. Senators all seem like reasonable limits to me – at least a decade in office, and no more than a dozen years. I could live with 18 years for SCOTUS justices, but that’s the outside limit.
It is not the courts job to represent the citizenry, but determine if a law is in keeping with the Constitution.
Ya, when was the last time?
Term limits are a tricky proposition because there are at least some positives to long-term representatives (they can amass long-term institutional knowledge in their area of expertise, they might actually be the most competent person in their district, they don’t become lame ducks in their final term) to go along with the well-known negatives.
I think term limits can be part of an election-reform package that reduces the massive advantage of incumbency.
Well it isn’t like manufacturing, you got a problem spot, you identify it, analyze it, and replace/fix it. I’m not the change horses every day kind of folk either, but at some point we need to recognize a bad bet as well. I do think our politicians (specifically the “R” folks and the federalist society with the Obama BS) have politicized/corrupted our courts, now as you so eloquently implied how do we correct this institutional corruption? If not term limits, what then?
I resist blaming anyone for what has happened at the Supreme Court. The founders’ basic idea that absolute power should be given to unelected officials in lifetime appointments, is absurd and is to blame. And we are seeing the reality of that absurdity played out every day, in and extremist, politicized judiciary. I don’t actually think my proposal for two year terms well ever be concerned, but what I do expect, possibly by the end of President Biden’s term, certainly by the end of the century, is an executive order holding that Supreme Court orders, and rulings concerning governmental power are advisory only, and not binding on the other two branches of government.
We talk about the Supreme Court as a defender of our rights and our freedoms. But the court of Brown v. Board, historically has been and is today, I would argue, the court of Dred Scott and Plessy v. Ferguson. On balance that court, the court of Gorsuch and Alito, should not influence our political affairs today.
The framers never meant that much power to be vested in the court.
An 18-year term is a reasonable idea. It stands little chance of being adopted since it would require a Constitutional amendment. That would require a supermajority vote of two-thirds of the US Senate and House and then ratification by three-fourths of state legislatures. I’m skeptical that it would stand a chance in today’s polarized environment.
Reasonably lengthy but bounded terms for Supreme Court justices presents itself as an evidently sound proposition. The rote down-the-middleism of this piece, its refusal to make a single analytical point or distinction, makes it just another example of the public discourse that has laundered the path to a Supreme Court that lacks legitimacy and needs the remedy.
The problem isn’t that justices have been on the court too long, the problem is that they are legislating without being elected. And really that they are legislating without the resources to legislate well.
I’m pretty down on these activist judges and their conservative nonsense.
The problem is they have gotten away from interpreting the Constitution, and have started playing politics. Legislating from the Bench. Term limits won’t fix any of that.
No, No, No:
Our 6 strict original intent, strict constitutionalists would never legislate from the bench!
That is what liberals do!!!
I doubt if the founders were strict constructionists. The document they drafted doesn’t read that way. I think the people who wrote it were acutely aware of the problems associated with trying to bind the hands of future generations. I don’t think any of them who gathered in Philadelphia in 1787, thought they were at the summit of human thought and understanding. For one thing, like any diverse gathering of politicians, they probably didn’t think the guy across the aisle who disagreed with him so vigorously wasn’t at the summit of human thought and understanding. Strict constructionism is a doctrine of recent origin designed to provide some sort of rationale for doing what justices had already decided to do.
Good Lord. It is very clear that one party and one party only is responsible for the current politicization of the Supreme Court and federal judiciary, and that is the Repub party, in thrall to the “conservative” movement.
That is the movement that created a litmus test for federal judges: approval by the far-right Federalist Society. That is the movement that ratcheted down the ages of federal judges so that some of their “conservatives” may very well serve 50 years. That is the movement that blocked every Obama judicial nomination until Reid had to alter the filibuster. And once one party engages in such tactics, of course the other will too, unless you expect Dems to unilaterally disarm.
Also, it’s not some inscrutable mystery how the legitimacy of the Court has now been reduced in the public eye when the Repub party has broken every norm that existed (as well as creating baseless new “norms”) in order to cram three democratically-illegitimate justices onto the Court from 2017-2020, creating a “conservative” super-majority. Why do the authors think the current Court “has strayed too far from the public’s values”? Do they think that perhaps the Repub party has ensured that the majority’s wishes have been frustrated by the “conservative” movement? Instead they strain to present the current illegitimate situation of the Supreme Court as just another “both sides” situation. Absurd.
Further, acting as though decisions of all judges simply “follow partisan lines” in resolving cases ignores the merits and arguments of the decisions judges issue! Yes, the justices nominated by Dem presidents don’t join many of the decisions by the current Trump majority. That’s because those decisions are largely lawless and simply enact “conservative” dogma and preferences, as with the recent misreading of OSHA to invalidate the vaccine mandate. One party has nominated lawyers willing to follow precedent or advance the actual values of the Constitution and existing precedent, while the other now nominates conservative activists in robes to return the country to the Gilded Age. The idea that these “conservatives” are simply “following precedent” and just “calling balls and strikes” is simply ludicrous, as these professors know (or should know). (And how exactly did Ginsburg get “more liberal” and Thomas “more conservative” over time? And how is Ginsburg’s REFUSAL to to retire somehow argued to be a partisan act, ala Kennedy’s retirement?)
Finally, as the authors acknowledge, the Constitution grants federal judges lifetime tenure. That means that they can’t be forced to retire at any age, whatever some newly enacted statute creating, say, 18 year terms may provide. So the Constitution would need to be amended to implement this reform. If it’s a popular idea, then one assumes some elected official or candidate will begin to make the case for amendment. But that’s the only available route to accomplish this.
The “conservative” movement broke the Court. And they aren’t about to change the process by which they accomplished it, even if reformers elect not to place the blame where it properly lies….
Yup.
I think it’s an issue that can be fairly both sided. For me, the issue comes down to Brown v. Board of Education. America in 1954 had institutionalized racism in public education. The obvious thing to do was to pass a law against it, to integrate public schools through legislation. Because of our system of government, this was impossible. Someone had to step in and impose the political solution our political institutions were unable to provide. It was the right thing to do, but it came at a political cost that we are paying today.
From this and your comments above, sounds like you disagree with Marbury v Madison and don’t think the Bill of Rights should be enforceable.
Everything about structuring our collective governing mechanisms is pragmatic. There’s no foolproof way of doing it that rises above human imperfection. A body with the power to strike down legislation, in order to give effect to the principles of individual dignity and liberty that underlie the Bill of Rights, is not going to be perfect, but an imperfect mechanism is better than none at all. There are concepts and norms that properly frame constitutional adjudication and give a Supreme Court a proper grounding within a democratic society. The problem is that since 1980 the Republican party, in the will to power, has blown thru them, as it has blown thru so many other norms essential to building and keeping a decent society.
I do have serious problems with Marbury v. Madison. It requires a Supreme Court that acts in good faith. I don’t think it does.
Or we could have had a non-reactionary, impartial Supreme Court simply reject the prior (strained, unpersuasive and patently wrong) “separate but equal” reading of the relevant constitutional phrase and adopt the only plausible reading of the text. It does say “equal protection of the law”; that seems like a no-brainer when applied to racial discrimination in public schools, after all.
So both routes to solving a huge societal problem were theoretically available and legitimate, but, as you say, the enduring racism of (mostly) the ex-Confederacy meant that the legislative method was utterly impossible.
This is not to say that we should have “government by court” or that every social problem can be resolved by the courts. But if there is a legal right, then there is a legal right. And today we have precisely the opposite problem: we have “conservative” judges making government by the elected branches impossible. Far from “conservative” judges exercising “judicial restraint”, we have radical rightwing judicial activism at every turn.
Finally, does it really makes sense that anyone should listen to a political or legal movement that thinks society should be “paying a political cost” for the (supposed) “illegitimacy” of Brown v Board of Education (1954), almost 70 years on? One would hope not!
15 justices. 15 year terms. New justice every year.
White male justices should have term limits while female justices should have no term limits.
“Ginsburg, a Clinton appointee who joined the court at age 60 in 1993, refused to retire. When liberals pressed her to step down during the presidency of Democrat Barack Obama to ensure a like-minded replacement, she protested, “So tell me who the president could have nominated this spring that you would rather see on the court than me?” “
Who? There were dozens, if not hundreds of qualified candidates who would have voted just like Ginsberg. Except they would have been 30-40 years younger and not likely to die before the Democrats had the presidency and the Senate again.
What an egomaniac Ginsberg was. She absolutely screwed this country over.
You know if we had nine 60 year old RBG’s on the bench today, nobody would be talking term limits, at least not on MinnPost.
Well, given that Dems won the popular vote (usually by a substantial margin) in every presidential election but one in the past 30[!] years, nine RBGs would have been a far more defensible (and democratically-legitimate) make-up of the Supreme Court than having “conservative” Repubs control it every year of the same 30 year time frame….