Sarah Simon, Associate Member, University of Cincinnati Law Review
Justices on the Supreme Court are appointed for life. Most retire, but four justices have died during their term: Justice Robert Jackson, Chief Justice William Rehnquist, Justice Antonin Scalia, and Justice Ruth Bader Ginsburg. Justice Ginsburg’s sudden death after serving 27 years on the Supreme Court has reignited a popular debate: Should the Supreme Court have term limits?
House Democrats proposed The Supreme Court Term Limits and Regular Appointments Act (“Act”), a bill that would create term limits of 18 years for justices. Justices would not have to fully retire after 18 years; they could rotate to lower federal courts after their 18 years on the Supreme Court. The Act would only allow presidents to pick two justices during a four-year term to limit political clashes over replacements.
Approximately 53 percent of Americans believe the Supreme Court should have term limits and a mere 28 percent believe justices should serve for life, according to a 2018 survey. Although there is public support for term limits, enacting them is more complicated. Part II will discuss the constitutionality of term limits. Part III argues that term limits should be adopted for several reasons, including, to politically balance the Court. Part IV concludes by acknowledging the political control of the Senate could prevent the term limits bill from being passed.
II. Constitutionality of Term Limits
While the majority of Americans support term limits, another important question must be addressed: How should term limits be effectuated? Some legal scholars argue that term limits may only be imposed through an amendment to the Constitution. This is because Article III Section 1 of the Constitution states, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . . ” The term “good behavior” has been interpreted by textualists to mean Supreme Court justices should serve life terms. Under this view, amending the Constitution is the only way to make term limits constitutional.
However, the Constitution was ratified in 1787 when the average life expectancy for a white male in the US was about 38 years. Today, US life expectancy is about 79 years (across demographics) and the average justice spends 28 years on the Court. According to the living Constitution approach, the Framers did not intend for justices to serve for as long as they do now because life expectancy was significantly shorter. Therefore, implementing term limits by statute would still be consistent with the Framer’s intent.
A third approach to interpreting the “good behavior” requirement in Article III Section 1 of the Constitution points out that it “does not expressly grant life tenure to Supreme Court justices.” This means the requirement of having justices serve “during good behavior” could be met by a law allowing justices to continue their service on another federal court after they serve on the Supreme Court. The proposed Act includes this option for justices after they spend 18 years on the Supreme Court, which makes the Act constitutional according to some legal scholars. Therefore, the proposed Act is likely constitutional. But, why should term limits be implemented?
First, the Act should be adopted to politically balance the Court by giving each president an equal amount of nominations. Thus far, presidential appointments have not been evenly distributed between Democrat and Republican presidents. Democrats have appointed only 4 of the past 18 justices. Even though a little less than half of the presidents over the last 50 years have been Republican. Ideally, about half of the justices should have been appointed by Democratic presidents and half by Republican presidents to reflect the majority of the country’s political ideology at the time of the vacancy. The Act would help solve this imbalance by limiting president appointments to two per term, giving future Democratic presidents more opportunities to appoint justices than they have had so far. This assures those newly appointed justices are reflective of the country’s political leaning, which is critical for a robust democracy.
Second, the Act would not harm the Court’s legitimacy. Legitimacy refers to the Court’s ability “to resolve disputes in ways people find acceptable even if they don’t like the decision.” Term limit critics argue life terms insulate justices from political pressure, which protects the Court’s legitimacy. If the Court is not viewed as legitimate, the public is less likely to follow its opinions. Under the Act, justices would be limited to 18 years on the Court, instead of life. 18 years is still a long time, equal to three Senate terms. Therefore, 18-year terms would protect justices from politics and the Court’s legitimacy would not be tarnished.
Third, the Act would limit the increasing divisiveness of the Supreme Court confirmation process. Although few Democrats today would agree with Justice Scalia’s opinions, he was confirmed 98-0 in 1986. No justice has been confirmed unanimously since. Instead, justices are increasingly confirmed with narrow margins and the votes are often along party lines, with Justice Gorsuch and Justice Kavanaugh confirmed 54-45 and 50-48, respectively. The increasing partisanship of the process paints justices as political figures instead of nonbiased interpreters of the Constitution, which in turn negatively affects how Americans view the Court. The Act would balance the number of justices that each president can nominate, which would help the confirmation process become less partisan.
Fourth, the tense political climate along with approaching elections heightens the need for term limits. Currently, President Trump is attempting to get his third nominee, Judge Amy Coney Barret, confirmed to the Court. Without term limits, Judge Barret could be on the Supreme Court for several decades as she is only 48. This is arguably too much power for one president to harness. Also, President Trump lost the popular vote, so him getting his third appointment makes the Court seem less in tune with the public. As Senate Majority Leader Mitch McConnell said when he refused to confirm Judge Merrick Garland in an election year, “the American people should have a say in the court’s direction.” Overall, term limits should be implemented to assure presidential appointments are balanced to reflect the electorate.
Currently, the House has a strong Democrat majority, but the Senate has a Republican majority. If the bill is passed, President Trump’s nominee, Judge Barret, would not be confirmed as President Trump has already appointed the maximum of two Supreme Court justices, Justice Neil Gorsuch and Justice Brett Kavanaugh. So, Justice Ginsberg’s vacancy would not be filled until next year, when either President Trump or a new president takes office. But the current political makeup of the Senate and the requirement that President Trump sign the bill make it unlikely that the bill will become law. However, if the Senate flips and a new president is elected, Democrats could try to pass term limits next year.
 Josh Blackman, Justices Who Died in Office, Volokh Conspiracy(Sept. 18, 2020) https://reason.com/2020/09/18/justices-who-died-in-ofice/.
 Nina Totenberg, Justice Ruth Bader Ginsburg, Champion of Gender Equality, Dies At 87, NPR (Sept. 18, 2020) https://www.npr.org/2020/09/18/100306972/justice-ruth-bader-ginsburg-champion-of-gender-equality-dies-at-87.
 Andrew Chung, Democrats Prepare Bill Limiting U.S. Supreme Court Justice Terms to 18 Years, Reuters (Sept. 24, 2020) https://www.reuters.com/article/us-usa-court-termlimits/democrats-prepare-bill-limiting-u-s-supreme-court-justice-terms-to-18-years-idUSKCN26F3L3?utm_source=reddit.com.
 Julia Manchester, Americans Tend to be in Favor of Term Limits for Most Institutions, says Pollster, The Hill (Sept. 27, 2018) https://thehill.com/hilltv/what-americas-thinking/408781-americans-tend-to-be-in-favor-of-term-limits-for-most.
 Zack Stanton, ‘It’s a Crazy Way to Run a Country’: How to Reform the Supreme Court, Politico(Sept. 24, 2020) https://www.politico.com/news/magazine/2020/09/24/supreme-court-reform-ideas-term-limits-rbg-age-packing-421203.
 U.S. Const. art. III, § 1.
 Kalvis Golde, House Democrats to Introduce New Bill for Supreme Court Term Limits, SCOTUSblog (Sept. 24, 2020) https://www.scotusblog.com/2020/09/house-democrats-to-introduce-new-bill-for-supreme-court-term-limits/.
 Frank Whelan, In the America of 1787, Big Families are the Norm and Life Expectancy is 38, The Morning Call (June 28, 1987) https://www.mcall.com/news/mc-xpm-1987-06-28-2569915-story.html#:~:text=Life%20expectancy%20in%20the%20America,years%20for%20a%20white%20male.
 CDC, National Center for Health Statistics, Centers for Disease Control and Prevention (Mar. 17, 2017) https://www.cdc.gov/nchs/fastats/life-expectancy.htm; Kalvis Golde, Experts Tout Proposals for Supreme Court Term Limits, SCOTUSblog(Aug. 4, 2020) https://www.scotusblog.com/2020/08/experts-tout-proposals-for-supreme-court-term-limits/.
 Chung, supra note 3.
 Stanton, supra note 7.
 Id. (quoting Professor Daniel Epps).
 U.S. Senate, Supreme Court Nominations (1789-Present) https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm.
 Rick Pearson & Jason Meisner, President Trump Officially Nominates Chicago Federal Judge and Ex-Notre Dame Law Professor Amy Coney Barrett to Supreme Court, Setting Up a Bitter Confirmation Confrontation in Senate, Chicago Tribune (Sept. 26, 2020) https://www.chicagotribune.com/politics/ct-amy-coney-barrett-trump-supreme-court-nomination-ginsburg-20200925-sro7jixc55gk7e5idsqokxuxg4-story.html.
 If confirmed, Judge Barret would be the youngest member of the current Court; id.
 Stanton, supra note 7.
 Ron Elving, What Happened with Merrick Garland in 2016 and Why It Matters Now, NPR (June 29, 2018) https://www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-in-2016-and-why-it-matters-now; Judge Merrick Garland was former President Obama’s Supreme Court nominee in 2016.