Jordan Perlman
Edited by Marissa Ambat, Mac Kang, Jia Lin, and Roohie Sheikh
Over the last decade, trust in governmental, social, and educational institutions, from news outlets to universities to intelligence agencies, has substantially declined alongside accusations of pursuing political or personal agendas. The Supreme Court of the United States (SCOTUS) is a leading example of this trend; the overturning of long-established precedents, allegations of corruption, and perceptions of severe partisanship have diminished SCOTUS’s reputation in recent years. Over the last century, federal regulations and legislation have increasingly supplanted state and local authority. Simultaneously, petitioners to SCOTUS have sought relief more frequently on polarizing and politicized disputes stemming from action by the Legislative and Executive branches. This escalating importance, the Court’s growing willingness to reevaluate and overturn its own case law, and statements and actions by its members have raised SCOTUS’ profile and made many Americans less comfortable with and confident in its decisions. Gallup polling from 2022 revealed that following the leaked Dobbs v. Jackson Women’s Health Organization ruling, which overturned the 50-year-old Roe v. Wade’s abortion protections, public confidence in the Supreme Court plunged to 25% [1]. Similarly, a 2022 Pew poll found that only 16% of adults believed the justices were doing an excellent or good job of keeping their political views out of decisions [2].
Article III of the Constitution establishes that SCOTUS justices “hold their Offices during good Behavior,” meaning that justices can remain on the Court until their death or self-determined retirement, provided they do not commit an impeachable offense such as serious ethical or criminal misconduct [3]. However, a majority of judges polled in a 2023 National Judicial College study recommended implementing term limits [4]. Advocates of term limits contend that it will increase trust in the court and decrease its politicization. The most widely supported proposal replaces lifetime appointments with staggered 18-year terms with one justice’s term expiring and a new justice appointed every two years [5]. Under this plan, two new SCOTUS justices would be appointed during each presidential term, removing the unpredictable and somewhat arbitrary timing surrounding this process. In October 2023, Senator Sheldon Whitehouse (D-RI) and nine Democratic co-sponsors introduced a bill proposing this 18-year SCOTUS term limit structure [6]. The benefits of a purely legislative approach include bypassing the time-consuming process to amend the Constitution, avoiding the super-majority votes necessary to pass an amendment, and minimizing political risk given any amendment’s questionable likelihood of success. However, Senator Whitehouse’s bill is unconstitutional, as the proposed change to SCOTUS requires a Constitutional Amendment, not merely an act of Congress.
While no federal judges are subject to a mandatory retirement age, District and Appellate courts, in contrast to SCOTUS, provide for a “senior” judge position. Under the “Rule of Eighty,” judges who are 65 or older, have served a minimum of 10 years as a judge, and have a combined age and years of service of at least 80 can choose to either remain active, retire with full benefits, or accept “senior” status. “Senior” judges receive the same salary but handle lighter caseloads, and the reclassification, most importantly, allows for the appointment of a new justice to fill their seat [7]. According to Senior U.S. District Court Judge Frederic Block, Congress created the position in 1919 to utilize the “many very experienced and able judges who were willing to continue to work at least part-time if they were unable to continue to do so full-time” [8].
The Senate bill for SCOTUS term limits tries to circumvent the Good Behavior clause by mirroring this “senior judge” structure. After serving 18 years, SCOTUS judges would be forced to become senior justices. These senior justices would assume non-courtroom responsibilities and preside over the small number of original jurisdiction cases, and could fill any vacancies for specific cases because of conflicts of interest or other reasons [9]. Some scholars allege that from a Constitutional perspective, as “senior judges,” the justices would still “hold their office” for life, although the definition of “office” is expanded to be more flexible. Proponents of Whitehouse’s bill argue that this change is within Congress’s authority as the legislative branch has broad control over SCOTUS’ structure. They cite the Judiciary Act of 1869, which established the number of justices, and the Certiorari Act of 1925, which granted the Court discretion over writs of certiorari [10][11]. Using these precedents, some scholars argue that Congress is therefore authorized to regulate term lengths and adjust the roles and responsibilities of justices.
However, this reimagining of the Constitution ignores the substantive meaning of holding office for life. In Federalist No. 78, when Alexander Hamilton thrice refers to the “permanent tenure of judicial offices,” he isn’t solely stating that justices keep their title as “associate justices of the Supreme Court of the United States” for life [14]. The inherent powers of a SCOTUS judge are included in a lifetime appointment. Term limits in any form, including forced “senior” status, fundamentally alter the position by removing justices from deciding the Court’s most consequential cases.
This reshaping is akin to Congress legislating that, in the final year of every president’s term, he is stripped of his executive power as commander-in-chief, chief diplomat, and chief executive, and fills only ceremonial purposes. While the president in that scenario nominally “holds office,” he is stripped of his authority. Similarly, forcing justices into a diminished “senior” status after 18 years alters the nature of their role, violating the intent and meaning of the Good Behavior clause.
Congress’ previous procedural and structural adjustments to the court do not legitimize their authority to impose term limits. While the Constitution does not fix the number of justices, as reflected in the renewed discussion of court packing, or fully detail the process by which the Supreme Court selects cases, it explicitly dictates that justices are eligible to serve during good behavior.
While the Judiciary Act of 1869 decreased the relative influence of individual justices by increasing the number of seats on the Court, it did not limit their individual powers as each judge retained equal authority to hear and decide cases. While the Certiorari Act of 1925 changed the process for determining SCOTUS’ docket, it did not alter each judge’s influence once a case was before the court, nor which judges heard the case. These laws regulated the Court as an institution, whereas term limits fundamentally diminish the role of justices, denying them the entrenched powers of their position.
Finally, the Constitution grants Congress the power to “ordain and establish” lower courts, creating a consensus that Congress has greater control over these courts than over SCOTUS [12]. Nevertheless, even in these lower courts, the active/senior justice model lacks an enforcement mechanism as the judges themselves decide when and if to become a “senior” [13]. This lack of authority over the lower courts suggests that Congress could not force SCOTUS judges to take “senior” status. Consequently, a constitutional amendment is the sole mechanism for instituting term limits.
The current unpredictable and conflicted nature of recent decisions as well as the arbitrary timing of appointments makes SCOTUS’s current path appear unsustainable in maintaining the trust of the American public. While any legislative plan to alter the Court is evidently unconstitutional, the debate surrounding the necessity of such reform remains vibrant. Possibly recognizing the shortcomings of Senator Whitehouse’s approach, in December 2024, retiring West Virginia Senator Joe Manchin (I) and Vermont Senator Peter Welch (D) introduced a constitutional amendment to institute the same staggered 18-year terms. As with any constitutional amendment, this proposal would require a two-thirds majority in both houses of Congress and ratification by three-quarters of state legislatures. However, any plan to create actual or pseudo-term limits for Supreme Court justices is not guaranteed to be effective or to ameliorate the public’s concern surrounding the actions or direction of the Court.
[1] Jeffrey M. Jones, Confidence in U.S. Supreme Court Sinks to Historic Low, Gallup (Jun. 23, 2022), news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx. (last visited Sept 5, 2024).
[2] Amina Dunn Gómez Andrew Daniller, J. Baxter Oliphant, Bradley Jones, Carroll Doherty, Hannah Hartig, Jocelyn Kiley, Ted Van Green and Vianney, Public’s Views of Supreme Court Turned More Negative Before News of Breyer’s Retirement, Pew Research Center (Feb. 2, 2022), https://www.pewresearch.org/politics/2022/02/02/publics-views-of-supreme-court-turned-more-negative-before-news-of-breyers-retirement/ (last visited Dec 4, 2024)
[3] The Constitution of the United States of America. | Library of Congress, https://www.loc.gov/item/20013929/ (last visited Dec 4, 2024)
[4] Many judges support term limits for SCOTUS, but it’s complicated, The National Judicial College (2023), https://www.judges.org/news-and-info/many-judges-support-term-limits-for-scotus-but-its-complicated/ (last visited Dec 4, 2024).
[5] Jennifer Ahearn, The Supreme Court Is Not Imperial. Congress Can Set Term Limits." Brennan Center for Justice (Aug. 9, 2024), www.brennancenter.org/our-work/analysis-opinion/supreme-court-not-imperial-congress-can-set-term-limits. (last visited Sept. 5, 2024).
[6] Whitehouse, Booker, Blumenthal, Padilla Introduce New Supreme Court Term Limits Bill, Sheldon Whitehouse: US Senator for Rhode Island (Oct. 19, 2023), www.whitehouse.senate.gov/news/release/whitehouse-booker-blumenthal-padilla-introduce-new-supreme-court-term-limits-bill/. (last visited Sept. 10, 2024).
[7] About Federal Judges | United States Courts, https://www.uscourts.gov/judges-judgeships/about-federal-judges (last visited Dec 4, 2024).
[8] Frederic Block, Senior Status: An Active Senior Judge Corrects Some Common Misunderstandings, 92 Cornell L. Rev. 533 (2007)
[9] Whitehouse, Booker, Blumenthal, Padilla Introduce New Supreme Court Term Limits Bill, Sheldon Whitehouse: US Senator for Rhode Island (Oct. 19, 2023), www.whitehouse.senate.gov/news/release/whitehouse-booker-blumenthal-padilla-introduce-new-supreme-court-term-limits-bill/. (last visited Sept. 10, 2024).
[10] NCC Staff, Why Does the Supreme Court Have Nine Justices? National Constitution Center, (July 6, 2018), constitutioncenter.org/blog/why-does-the-supreme-court-have-nine-justices. (last visited Sept. 5, 2024).
[11] About the Supreme Court | United States Courts, www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about. (last visited Sept. 5, 2024).
[12] The Constitution of the United States of America. | Library of Congress, https://www.loc.gov/item/20013929/ (last visited Dec 4, 2024)
[13] Frederic Block, Senior Status: An Active Senior Judge Corrects Some Common Misunderstandings, 92 Cornell L. Rev. 533 (2007)
[14] Clinton Lawrence Rossiter, and Charles R.. Kesler, The Federalist Papers: Alexander Hamilton, James Madison, John Jay, New York City, Signet Classic, 2003.
Comments