August 17, 2024
Should the Supreme Court Justices Have Term Limits?
Philip Kotler
The American Constitution is very clear. Article III states that these judges “hold their office during good behavior.” This means they have a lifetime appointment, except under very limited circumstances. Article III judges can be removed from office only through impeachment by the House of Representatives and conviction by the Senate.
Our founders felt that life tenure would insulate the justices from external political pressure, leaving them to act impartially.
When the Supreme Court was constituted, persons on the average would die in their 50s or 60s. Justices would be appointed around age 40 to 50. There was no concern about the justices living to their eighties or nineties.
Today people live much longer. Supreme Court justices can rule for several decades. William O. Douglas is the longest serving Supreme Court Justice, having served for 37 years and he died at age 82. Today, justice Thomas has already served more than 18 years and justice Alito is close to 18 years In recent years, the Supreme Court has become much more political and partisan. Many votes in the Supreme Court end up 6 to 3 with the court’s majority protecting conservative values and ruling against liberal positions. The current 6–3 conservative supermajority has reversed 50 years of legal precedent on reproductive rights, the 2nd Amendment, and environmental and climate regulations.
The founding fathers felt that a justice could hold office during “good behavior.” Unfortunately, the America Constitution does not define “good” behavior. Nor does the U.S. Constitution define “bad” behavior. Presumably, bad behavior would be a justice accepting a bribe to vote a certain way. What if a justice doesn’t receive money but accepts expensive gifts and travel from a wealthy person holding an extreme rightest view? Could that be viewed as bribing? Does this gifting compromise the justice’s views. At this stage, should Congress pass the ethics code proposed by President Biden? Will enough states pass this as an amendment to the Constitution?
A proposed Constitutional amendment would need to include other situations for removing a Supreme Court justice. What if a justice begins to suffer from a serious physical or mental illness that prevents the Justice from attending meetings and actively participating in the debate of cases coming before the court. Suppose a justice shows growing signs of dementia, schizophrenia or deep depression.
This problem of serious physical or mental decline covers many more situations than just Supreme Court justices. It can happen to CEOs running giant corporations or to key managers. It can happen to teachers, bus drivers, almost anyone responsible for making important organizational or personal decisions. Unfortunately there is too little discussion of how these illnesses can be detected and confirmed and what remedies should follow.
The Case for Term Limits
The U.S. is the world’s only major democracy where the Supreme Court is without term limits or a mandatory retirement age. Yet 47 U.S. states have adopted term limits for their high court judges and some states have imposed a mandatory retirement age of 70.
All said, U.S. Supreme Court justices serve until their death, retirement, or conviction by the Senate. One way to reduce the likelihood of mental or physical disease or “bad” behavior is to pass term limits on how long a justice can serve. Suppose a proposal is made to limit Supreme Court justices to serve only 8 years. There are two problems with this term limit. First, many excellent candidates might decline joining the court for only 8 years. The candidate would have to leave a high paying position as a lawyer, accumulate a great deal of new knowledge about the court’s procedures and then hopefully return to his or her’s former position or a better position eight years later.
President Biden proposed a Supreme Court reform package that recommends 18-year term limits and an enforceable ethics code for justices. Term limits of 18 years are reasonable. Most candidates for a Supreme Court position are likely to be in their fifties and in good health. Eighteen years later the candidate would be approaching age 70. This is the normal retirement age for most professionals. They start wanting a life of less pressure.
Term limits beyond 18 years, say 26 years, carries two risks. One is that the justices will be approaching age 80 and this increases the likelihood of physical and mental illnesses. Second, these justices had received an education that had little to do with the great advances in technology such as the Internet, AI, drones, robots, digital currency and other innovations. They may lack the ability to understand the high tech world and this will impair their decision making.
Another reason favoring 18 years is that this will cover four Presidential elections. Given the likelihood that there will be a Democratic and a Republican President during these 18 years, each party is likely to have a chance of choosing one or two justices favorable to their party. The suggestion has been made that Presidents should appoint justices every two years.
If term limits of 18 years are passed by a sufficient number of states, it will affect the existing court. It is likely that at least two of the justices would have been on the court for 18 years. They may have to retire soon. Both political parties would have to nominate new justices. Retirements of these older justices wouldn’t occur until new judges are found to replace them. At the same time, other justices who will soon approach 18 years would start making their own plans.
The Court’s Declining Reputation
Confidence in the U.S. Supreme Court has been declining since the 1970s. Chief Justice John Roberts, who has already served 18 years, received the lowest “most favorable” vote, only 6%. Justice Sonia Sotomayor had the highest favorability rating at 37 percent.
Indeed, the court is experiencing the most severe crisis in its 235-year history. Representative Ocasio-Cortez filed impeachment proceedings against Justices Samuel Alito and Clarence Thomas in July 2024 regarding ethical scandals by these judges for failing to disclose luxury trips and flights from wealthy donors. The public has also been concerned over major court rulings. Liberals name four particular examples of the court’s majority conservative bias. 1. The court ruled that women do not have the right to an abortion on the federal level; this has to be decided in each state. 2. The court determined that Trump has immunity from prosecution for actions in an official capacity. 3. The court overturned the Chevron decision, limiting the power of government agencies to carry out their duties; and 4. The court made it harder to charge Capitol riot defendents with obstruction. These rulings seem based on politics and seriously threaten our democracy and civil liberties.
A June 2024 AP-NORC poll found that only 16 percent of adults have “a great deal” of confidence in the court. 70 percent believe that justices “are more likely to try to shape the law to fit their own ideologies.”
There was a time where a near-unanimous vote to confirm a nominee was forthcoming. Ruth Bader Ginsburg was confirmed 96–3 in 1993. No senator voted against Sandra Day O’Connor’s nomination in 1981. And Anthony Kennedy was confirmed 97–0 in 1988.
Biden’s reform plan for ethics and term limits was quickly dismissed by congressional Republicans. Republican Speaker of the House Michael Johnson claimed that it would “erode … the rule of law.” Senator Lindsey Graham of South Carolina claimed that Biden “wants to destroy the court.”
In the meantime, four Democratic members of Congress plan to introduce the Judiciary Act that would add four seats to the Supreme Court. If passed, President Biden could name four individuals and give Democrats a 7–6 majority.
Not much change will occur in reforming the Supreme Court until one Party receives a majority in both the House and the Senate. Until that time, the public’s opinion of the Supreme Court will continue to deteriorate as the court’s majority continues to adopt one-sided conservative positions.
