Opinion | Why the Supreme Court Needs (Short) Term Limits (Published 2021) (2023)

Opinion|Why the Supreme Court Needs (Short) Term Limits


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Opinion | Why the Supreme Court Needs (Short) Term Limits (Published 2021) (1)
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By Rosalind Dixon

Dr. Dixon is a law professor and testified before the Supreme Court Commission in July 2021.

The Presidential Commission on the Supreme Court recently issued its final report, considering a range of procedural changes to how the court operates — most notably, the introduction of term limits for the justices. It pointed to 18-year terms as the leading model for such change. Ideally, it suggested, the states would ratify a constitutional amendment, but some of the commissioners believed this could also be attempted through an act of Congress.

In writings after the report, other members of the commission suggested that term limits do not go far enough to curb an institution they view as hyperpartisan and as having lost public trust. (The court’s approval rating has plummeted, according to Gallup, to its lowest point since 2000, when the poll began.) They said that what was needed was an increase in the size of the court — to rebalance it in a more bipartisan direction.

More is needed to address the court’s current composition and approach — not by expanding the size of the court but through even more powerful, that is, shorter, term limits.

Eighteen years is too long to address the crisis in Supreme Court functioning and legitimacy. We need term limits that start to bite much sooner — after 12 years.

Judicial term limits are a tool widely employed by constitutional designers around the world. Some countries follow the British model of judicial age limits. Others follow the German model of fixed judicial terms, but almost all — other than the United States — reject the idea of lifetime judicial tenure. And they do so by imposing term limits shorter than 18 years.

Perhaps most important, countries with strict judicial term limits include some of the most powerful and respected constitutional courts. In Germany, justices of the Federal Constitutional Court are appointed for a single, nonrenewable 12-year term. It is the same in South Africa. And in Colombia and Taiwan, constitutional justices are appointed for an eight-year term.

Like term limits for the presidency, judicial term limits have several salutary benefits. They encourage regular turnover on a court and the renewal of democratic consent and input into the process of judicial review.

They also discourage the appointment of young, hyperideological judges who are seen as having the capacity to stay on the court for the long run and shift it in a particular predetermined ideological direction.

The Supreme Court does a lot more than call balls and strikes. It decides a range of complex legal and political questions, where legal and political philosophy inevitably play a role.

But for a court to earn and retain the public’s trust, those decisions must reflect a judge’s considered individual moral and political judgments, not any fixed ideological position or platform. Justices must also engage in true collective deliberation, not factional conferencing based on ideological positions.

The Supreme Court still does this in a wide range of nonconstitutional cases and cases that involve complex federal statutes like the Employee Retirement Income Security Act. But it rarely engages in that kind of thoughtful, collective deliberation in cases that involve constitutional rights and freedoms. What is good enough for employment benefits should be good enough for constitutional rights.

Expanding the court (“court packing”) might be justified if things were to get worse. For now, it risks setting off a dynamic with dangers for democracy. It could result in a cycle of escalation: As soon as Republicans regain control of Washington, they would seek to expand the size of the court as well. This would create a court that is too large, is forced to sit in panels rather than en banc, or as a whole, and produces uneven and unpredictable results. This is basically the experience of the Supreme Court of India, which has about 30 justices.

And it would mean that would-be authoritarians around the world would feel licensed to do the same. They would be encouraged to engage in what David Landau of Florida State University College of Law and I have called a form of “abusive” borrowing — the adoption of court packing as a strategy to advance anti-democratic rather than democratic aims.

No reform is without risks. Judges with fixed terms might also start considering postjudicial opportunities in their judgments. This is especially true for lower court judges, which explains why current reform efforts are focused solely on the Supreme Court. But this seems like a minor risk for the Supreme Court itself: Most justices are likely to prefer international arbitration or law teaching to ambassadorships. And as the commission itself noted, at least if there was a constitutional amendment, there could be a bar on judges’ holding certain offices during a period after retirement.

Some might worry that the court could turn out to be too responsive to politics under a 12-year term. This was the main reason the commission itself preferred 18-year judicial terms. But the composition of such a court would remain constant only for a single presidential term. And the details would matter: All judges could be appointed during the final two years of a president’s term, when there is less likely to be unified government and when a president’s choices would affect only the next president. This could also be accompanied by changes to how the Senate vets and votes on nominees.

The biggest risk is that the reform will simply fail to get off the ground. Judicial term limits can be adopted by statute or constitutional amendment. If adopted by statute, it would come before the Supreme Court for review — and the court might well reject the argument that it is compatible with Article III, which entrenches guarantees of judicial independence.

That makes constitutional amendment the safest path for any reform effort — but it is also the most difficult path. Article V provides that any successful amendment requires a supermajority in Congress and among the states. And if an amendment were a serious possibility, one might put a range of reforms — broader changes to how justices are appointed, electoral districts are drawn and campaign finance is regulated — ahead of term-limit reform in the list of structural changes likely to improve American law and politics.

Reforming an institution like the Supreme Court is tricky: Too rapid and radical an approach risks undermining all the institutional respect and capital it has built over centuries. Too moderate a response risks leaving it to face a slow decline in institutional integrity and public respect.

But especially if they could be adopted by statute, 12-year staggered judicial term limits might just help thread that needle — and contribute to meaningful yet restrained change to an institution that is in urgent need of it.

Rosalind Dixon is a law professor and director of the Gilbert + Tobin Center of Public Law at U.N.S.W. Sydney. She is the author, with David Landau, of “Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy.”

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A correction was made on

Jan. 3, 2022


An earlier version of this article mischaracterized the purpose of the Presidential Commission on the Supreme Court report. It was to consider reforms to the Supreme Court, not call for reforms to it.

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Why do we need term limits for the Supreme Court? ›

Limiting the justices to specific terms would ensure that every president has an equal imprint on the Court and create more opportunities to appoint new justices that reflect changing demographics and the sentiments of many different communities, including Latinos.

What is the Supreme Court term limits and regular appointments Act of 2021? ›

Introduced in House (08/31/2021) This bill establishes staggered, 18-year terms for Supreme Court Justices and limits the Senate's advice and consent authority in relation to the appointment of Justices. Specifically, the bill requires the President to appoint a Supreme Court Justice every two years.

What does the Constitution say about term limits for Supreme Court? ›

First, the Constitution does not expressly grant “life tenure” to Supreme Court justices. Rather, this idea has been derived from the language that judges and justices “shall hold their offices during good behaviour.”

How can the public limit the impact of a Supreme Court decision? ›

Congress can pass legislation to modify the impact of prior Supreme Court decisions. Seemingly Court decisions are final. They cannot be overturned by Congress or vetoed by the president.

What are the benefits of term limits? ›

While there are many reasons to support term limits, their core purpose is to regularize the appointments process, making judicial appointments more predictable and the composition of the U.S. Supreme Court more rationally related to the outcome of democratic elections over time.

What are the limits to the Supreme Courts power? ›

With enough political will and a willing President, it is within Congress' authority to limit the US Supreme Court's power by restricting what type of appeals it may accept.

Does Supreme Court have term limits? ›

America is alone among modern constitutional democracies in allowing its high-court justices to serve for decades without term or age limits, resulting in some Presidents appointing no justices and others appointing as much as a third of the Court.

What is the term limits bill? ›

today introduced an amendment to the U.S. Constitution to impose term limits on members of Congress. The amendment would limit U.S. Senators to two six-year terms and Members of the U.S. House of Representatives to three two-year terms after the date of its enactment.

What is one argument in favor of federal judges have lifetime appointments? ›

In addition, federal judges are required to retire at age 70, so they are not immune from accountability. Overall, lifetime appointments are a necessary part of the federal judiciary. They promote independence and allow judges to make decisions based on what they believe is right, without fear of reprisal.

Do term limits violate the Constitution? ›

Term limits movement

As they pertain to Congress, these laws were struck down as unconstitutional by U.S. Supreme Court in U.S. Term Limits, Inc. v. Thornton (1995), in which the court ruled, on a 5–4 vote, that state governments cannot limit the terms of members of the national government.

Does term limits require a constitutional amendment? ›

that a constitutional amendment to the U.S. Constitution would be necessary to establish congressional term limits. Based on the case law discussed, a federal statute establishing term limits for Members of the House or Senate would likely be held unconstitutional.

Are Supreme Court decisions limited by the Constitution? ›

When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.

How can we improve the Supreme Court? ›

Four Steps To Reform Our Courts:
  1. Restore balance by adding four seats to the Supreme Court. ...
  2. Depoliticize the Supreme Court by creating term limits for justices. ...
  3. Create a binding code of ethics for Supreme Court justices. ...
  4. Improve access to justice and diversity by adding judges to lower courts.

Is it possible to expand the Supreme Court? ›

Article III, Section 1 of the Constitution gives Congress the authority to change the size of the Supreme Court. Congress has used that authority seven times before. To restore balance and integrity to a broken institution, Congress must expand the Supreme Court by four or more seats.

What is the significance of the lack of Supreme Court term limits quizlet? ›

What is the significance of the lack of Supreme Court term limits? This allows Supreme Court Justices to make rulings free of political pressure. Which case established the precedent of judicial review?

What are the qualifications and term length for the Supreme Court? ›

The term of office depends on when the position became vacant. The California Constitution provides for a term of 12 years. However, if part of the term was served before the position became vacant, the justice serves the uncompleted part, either four or eight years.

Why did the framers include life tenure for federal judges? ›

Why did the framers include life tenure for federal judges? It would make judges more independent and free from political pressures. generally review only findings of law made by lower courts.

Can a Supreme Court justice be removed? ›

Does Thomas' alleged conduct rise to the level of impeachability, as some Democrats are suggesting? Impeachment, a political tool that relies on a majority consensus in the U.S. House of Representatives and a trial in the Senate, is the only mechanism for expelling justices.

Who was the longest serving justice of the Supreme Court? ›

The longest serving justice was William O. Douglas, with a tenure of 13,358 days (36 years, 209 days). The longest serving chief justice was John Marshall, with a tenure of 12,570 days (34 years, 152 days).


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