It’s About Time: Term Limits for the Supreme Court

Lifetime tenure for the Supreme Court was a mistake.

It’s about time someone seriously proposed term limits for the Supreme Court. The way we pick Justices, appointments for life, is a national disaster.

Let me be clear: I despise court packing and similar mischief meant to ideologically engineer the Court—the plans of unserious people eager to permanently degrade our democracy to pursue short-term victories. This kind of Constitutional tit for tat is foolish and dangerous; your team tinkers with the Constitutional order to add three Justices, the other team after the next election adds five, and so on until Article III of our Constitution is a broken remnant of democracy. Term limits of eighteen years for Supreme Court Justices, on the other hand, is an idea everyone conservative, liberal, or independent reformer ought to champion.

Lifetime tenure for the Supreme Court was a mistake.

America’s Founders only gave Supreme Court Justices lifetime tenure because they didn’t fully understand the role the Court would play in our democracy. Our Founders obsessed over balancing the powers of the legislature and the executive because the political branches were most important. They treated the Court as almost an afterthought since they thought it would simply interpret the laws the others made. When thinking about Court tenue, their chief concern wasn’t political but stopping corruption. If guaranteed a position for life, judges wouldn’t worry about pleasing the powerful with decisions because they couldn’t be fired. They wouldn’t feel pressure to curry favor, because they would never need a job again.

The Supreme Court, however, was always fated to become a politically relevant institution, particularly after Marbury v. Madison established its power to strike down acts of Congress—something the Founders didn’t originally consider. Then the twentieth-century legal realist movement embraced that idea of a living Constitution that evolved with society over time. Then the Warren Court eagerly dove into political questions, changing expectations of the Court’s role. That triggered the confirmation wars with the organized campaign to stop the nomination of Robert Bork. Americans now view ideological control of the Court as politically important, and for good reason.

Given the reality of the Supreme Court as it now exists, lifetime appointments are patently ridiculous. Court nominations have turned into an ideological circus with dirty games and dirtier politics. They continually plunge America into crisis and alienate the country. Each nomination battle tears our democracy open a little further, causes more outrages, creates more grudges, and breaks more norms. Lifetime appointments lock in an ideological view for decades, so the people doing the damage believe it’s worth the cost.

The biggest problem with lifetime appointments, however, is one we rarely talk about. They encourage the nomination of the wrong kinds of Justices—ones the nominators believe will be predictable, dogmatic, ideological, and therefore unremarkable.

Supreme Court Justices are supposed to be the high priests of democracy and guardians of the Constitution, not backbenchers in a legislature voting reliably with the party line. Their role is to be the backstop to bad ideas, popular manias, and momentary mobs seeking to cram fads into the fabric of our complicated democracy. Since this is the most difficult and important job in our republic, we need the wisest, most thoughtful, most patriotic, and most supple thinkers in their generation to fill it. The model is supposed to be Oliver Wendell Holmes, Louis Brandeis, and Learned Hand (tragically never put onto the Supreme Court himself).

Those qualities are exactly the ones that disqualify you for today’s Supreme Court.

The identities of our most brilliant, thoughtful, and creative judges are common knowledge—everyone openly talked about them back when I clerked on a Federal Court of Appeals. It’s also common knowledge that none of them could ever make it onto the Court. Since each seat locks in a judicial perspective for maybe forty years, each is a precious opportunity to win or lose important ideological battles for a generation. Nobody appointing Justices wants an original thinker in that position. They want a consistent and predictable vote for the policies they favor to lock them in for perhaps almost a half century.

From the perspective of the people who control the nominating process, anyone who has ever said or done anything interesting, thoughtful, or unexpected is unreliable—and therefore unconfirmable.

What the nominators want is, first, someone very young to lock their position into place as long as possible—meaning less accomplished and experienced. Promising candidates are now groomed only years out of law school to tick the necessary boxes for a Court appointment as quick as possible. In practice, this means Justices in their 40s, although 30s would be great if a candidate could get away with it. 50 is already getting a bit too old, and 60 out of the question.

They also want someone perfectly reliable. Everybody fears another Justice Souter—a Justice appointed by one party who over a career shifts toward the opposition bloc. Nobody wants a loose cannon or judicial moderate, someone who might unexpectedly join the other team on a key opinion. What they want is someone who has never held a surprising opinion or said anything complex in public that someone could twist to disqualify them, whether during a vetting or a confirmation hearing. They want someone conformist, predictable, rigid, ideological, and partisan.

The only sort of candidate who can successfully navigate the process will be an ambitious careerist and conformist dedicated to quietly climbing ladders, coloring inside the lines, and happily following their side’s ideological consensus. Such careerists are unlikely to have many interesting opinions anyway.

I’m not knocking the people now on the Court—at least not much. All are smart and impeccably credentialed elite lawyers who would be a credit to any firm and a standout on most benches. Some even surprise us sometimes after developing on the Court. However, nobody gets chosen for this role because the people who appointed them believed they would make the most thoughtful, creative, patriotic, long-thinking interpreters of the Constitution. They were chosen because their nominators thought they would be consistent, boring, predictable, and thus controllable.

Term limits fix these problems with minimal disruption to our Constitutional order. If Justices are limited to eighteen years, the stakes are lower per Justice. Justices still get paid for life after retirement and will never need another job, so they retain all benefits of lifetime tenue without the drawbacks. If every president is guaranteed two appointments per term, there’s no reason to play confirmation games to derail candidates. Each president gets two Justices of their choice no matter what. Derail one and another candidate is coming who, according to your priorities, might be worse. Since a two-term president can only appoint four Justices, no president can pack the entire Court alone.

There’s no longer a reason with term limits to groom the youngest Justices you can find. It’s better to appoint legendary candidates with distinguished careers, a lifetime of expertise, and thundering reputations. The risk of a failed pick is smaller, so it’s possible to appoint people with novel thoughts and groundbreaking ideas. Why not appoint the wisest and most intimidating intellect you can find? One simple and non-intrusive fix and we repair every major problem with modern Court nominations, while eliminating the lurking danger of proposals that disrupt the rule of law like court packing. We make it possible to appoint a Justice Holmes again.

Supreme Court term limits are a separate issue from the rest of President Biden’s judicial reform plan. Like many people, I have serious issues with other proposals. Questions also need to be resolved about how to transition from the current system to one with limits. Proposals that demand older Justices immediately retire and be replaced are nonstarters, since in practice they amount to another form of improper court packing. Since these proposals are going nowhere at the moment, we can and should decouple them from this one necessary reform.

The basic idea of term limits and eighteen-year terms is good. Let’s do it to strengthen the American republic.