Bill Proposal: Supreme Court Term Limits

by Kate Brewer, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

Democratic Senators recently proposed legislation called the Supreme Court Biennial Appointments and Term Limits Act. This bill would impose a term limit on Supreme Court Justices, limiting how long they may serve –– a stark change from the lifetime positions they have always enjoyed.¹ This comes after a number of controversial decisions which overturned years of precedent, including ending universities’ use of affirmative action programs² and ending the constitutional right to an abortion.³ Further, concern over the power of the Supreme Court has grown, especially after a report from ProPublica that several Justices failed to disclose large gifts they received from Republican donors.⁴ The proposal is not projected to receive support from Republican Senators, who have previously opposed Democratic-led legislative efforts to confront “ethical lapses and misconduct” of the Court, or from the Republican-controlled House.⁵ However, calls for restrictions on the Supreme Court Justices’ tenure will likely continue to grow if the Court continues to rule against long-standing precedent.

Part II of this article discusses the reasons for a call to enact a term limit on Supreme Court Justices, the proposed term-limit bill itself, and other possible limits on the Supreme Court that may be called for in the future. Part III discusses the constitutionality of such limits, whether they may ever be implemented, and whether or not they should be implemented. Part IV argues that, regardless of some scholars’ arguments that Supreme Court term limits are constitutional and may serve to address other concerns on the power of the Court, it is unlikely that a term-limit bill will be put into effect at this time.

II. Background

A. The Constitution

The Supreme Court enjoys significant constitutional protections to establish a strong and independent judiciary that the drafters considered important in ensuring the checks and balances of the executive and legislative branches. The granting of life sentences to Justices was a means to ensure that the judiciary be impartial and free from political pressures.⁶ Article III of the Constitution vests the judicial power of the United States in the Supreme Court and states that Justices shall hold their officers during “good behavior,” and also asserts this for judges of “inferior courts” established by Congress.⁷ “During good behavior” has historically been interpreted to mean that Justices hold their positions on the court for life, subject only to removal if they commit certain “high crimes and misdemeanors.”⁸ Additionally, Article III protects the salary of judges and Justices, stating that it shall not be diminished during their time in office.⁹ However, the Supreme Court has not remained entirely unchanged since our nation’s founding. The number of justices on the Supreme Court has changed six times before being finalized at nine in 1869.¹⁰

B. Reasons for Concern

Following Justice Scalia’s death in 2016, the conversation of instituting term limits was revitalized, with proponents of the limit arguing that Justices today serve much longer sentences on average than in the past.¹¹ The average term for a Justice has been sixteen years, yet the five most recent Justices to leave the bench served an average of almost twenty-seven years.¹² The problem with such lengthy terms is that the Supreme Court does not see regular turnover, and to some, this means Justices are further and further removed from the current practice of law, the legal system, and modern American values.¹³ Another concern that critics of lifetime terms have is that it results in a weakening of ethics standards for the Court, especially since Justices currently have very little oversight and accountability.¹⁴

Another concern that is often brought up in the debate regarding life terms is that Justices can strategically plan their retirements to line up with Presidents who are more likely to replace them with someone more ideologically aligned.¹⁵ When a Justice leaves their position on the Court, the sitting President has the power to nominate an individual to take their place, and this appointment goes to the Senate for votes on approval.¹⁶ Subsequently, Presidents may choose an individual who aligns with them or their party in terms of values, political beliefs, religious beliefs, etc. If a Justice plans to retire, they may choose to wait until the sitting President is someone who will replace them with an individual with similar beliefs and values as their own. Even if Justices leave the Court suddenly, the timing may coincidentally result in one President making several appointments while others do not get the same chance. For example, President Trump made three appointments in a single term, while the three Presidents before him each only made two appointments total over a period of two terms.¹⁷ Before that, President Reagan made four appointments in two terms, while President Nixon made four appointments in one single term.¹⁸

Further, because the Senate must confirm a Supreme Court nominee, the dominant political party may sway the result of the vote. In 2016, following the death of Justice Scalia, President Obama attempted to appoint Merrick Garland to fill the vacancy on the Supreme Court.¹⁹ However, because it was an election year, Senate Majority Leader Mitch McConnell declared that they would not approve any appointment by the sitting President, and would leave the decision to be made by the next elected President.²⁰ This came despite the fact that Garland, the chosen nominee, was largely regarded to be a moderate and had received praise by Republican Senators in the past.²¹ No proceedings were held on Garland’s appointment, and the Supreme Court had to resume proceedings with only eight justices. The eight Justices remaining were split ideologically with four being more liberal and four being more conservative, which caused the Court to be deadlocked on a number of important issues.²² Such a vacancy may even drive presidential election voters to make their decision based on the type of Justice they want to see join the Supreme Court.

Despite the Republican Senators neglecting to even consider a Supreme Court nomination coming from President Obama during an election year, they later changed their stance. Following the death of Justice Ginsburg during an election year, President Trump announced that he was nominating Amy Coney Barrett for the vacancy.²³ Within hours of Justice Ginsburg’s death, Senate Majority Leader Mitch McConnell had pledged to bring the nomination to a vote on the Senate floor, and Barrett was approved to serve on the Supreme Court.²⁴ Sporadic appointments to the Supreme Court can easily result in a greater representation of one party or set of values over another, and with Presidents considering their political goals in appointments, the Supreme Court can become inherently politicized.

C. Calls for Action

The idea of limiting Supreme Court term lengths is not a novel one. It can be traced back to the founding of our nation, with individuals such as Thomas Jefferson denouncing the idea of life terms for federal judges.²⁵ There has been calls for eighteen-year term limits by critics through many organizations, such as the Brennan Center for Justice and the Center for American Progress.²⁶ A poll from 2015 showed that two-thirds of Americans supported ten-year term limits on Supreme Court Justices, in a rare showing of bipartisanship.²⁷ At this time, it seemed that a constitutional amendment on the issue was a possibility.²⁸ Additionally, a benefit is given to serving Presidents who are able to appoint Supreme Court Justices who align with their values, while other Presidents are not given the same opportunity.²⁹ A number of notable figures, such as legal professor, textbook author, and Dean of UC Berkely School of Law, Erwin Chemerinsky, has been a staunch advocate for the eighteen-year term limit.³⁰ Back in 2016, numerous Republican politicians also supported some form of term limit for Supreme Court Justices, such as Ben Carson and Rand Paul.³¹

Today, trust in the Supreme Court is nearing record-low levels after hitting rock bottom in September 2021 following a decision where it declined to block a controversial Texas abortion law, ultimately leading to the overturning of Roe v. Wade.³² Today, 58% of respondents disapprove of the Supreme Court.³³ Additionally, a poll conducted by the University of Massachusetts Amherst in 2023 reported that Americans favor term limits for the Supreme Court by 65%; this included 82% of Democrats and 49%, or almost half, of Republicans.³⁴ A professor at the University of Massachusetts Amherst attributes the results of increased dissatisfaction to an “out of touch and ideologically extreme” Supreme Court.³⁵

D. The Proposed Bill

The Supreme Court Biennial Appointments and Term Limits Act was recently proposed following reports that Supreme Court Justices were receiving undisclosed gifts and favors from Republican donors, sparking concerns of bribery and undue influence in judicial decisions.³⁶ Senator Whitehouse also proposed similar legislation last year, but it forced judges past their eighteen-year limit into senior status and only allowed them to fill in if the number of active justices fell below nine, and was unsuccessful.³⁷ The current proposed legislation would allow Presidents to appoint a Justice to the Supreme Court every two years, but only the nine most recently appointed Justices would be able to hear cases from the federal appeals courts, which make up the majority of the Supreme Court’s docket.³⁸ Justices who reach a term of eighteen years would be limited to hearing cases only over which the Supreme Court has original jurisdiction, or serve as alternates for the nine most recent Justices should they be unable to participate in an appellate jurisdiction case.³⁹ Thus, a new Justice would join the Supreme Court every two years, spend eighteen years participating in all Supreme Court cases, and then would be limited to hearing only a small number of constitutionally required cases. Only the nine most recently appointed Justices would hear appellate cases.⁴⁰ In this way, the bill technically preserves “life tenure” for Supreme Court Justices, yet significantly limits their influence.

III. Discussion

A. Constitutionality of the Proposed Bill

The Constitution appears to explicitly grant life terms to Supreme Court Justices, which may make the path forward for a bill that limits those terms unlikely. However, some critics of Justices serving life terms argue that the Constitution does not expressly grant “life tenure” to them, rather the idea is a loose interpretation of the actual language of Article III.⁴¹ The text of Article III states that federal judges and Justices shall hold their offices “during good behavior,” and therefore, it may be Constitutional to shift Justices instead to lower federal courts or less involved roles within the Supreme Court, while not removing them entirely. If such a term limit is constitutional under the current text, implementing it would not require a change to the text of the Constitution, and therefore would not require ratification of a new amendment. Under the current interpretation of the language, however, a change of the life term limit would most likely require a constitutional amendment. An amendment would need to be proposed by either Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by two-thirds of the State legislatures.⁴² However, with the majority of the Supreme Court being Republican-appointed Justices and there being a Republican majority in the House, it would be difficult to get a two-thirds vote on an amendment to limit Supreme Court terms. Legal scholars differ on the interpretation of Article III and, subsequently, what it would take to enact such change.

B. Other Reform Routes

The term limit bill introduced by Senator Whitehouse is not the only bill concerning Supreme Court reform that is currently pending in Congress. For example, the Judiciary Act of 2023 would add four more Justices to the Supreme Court.⁴³ Several other bills would require the Judicial Conference of the United States to adopt a binding ethics code for Justices, for Justices to explain any recusal decisions, and for Justices to be subject to ethical investigations.⁴⁴ Some bills would result in review oversight, disclosure requirements of funding and gifts, or a limiting of Supreme Court jurisdiction.⁴⁵ In total, at least six Supreme Court reform bills are pending in Congress.⁴⁶

There has been great discussion around ethics requirements for the Supreme Court. Senator Whitehouse, who spearheaded the proposed term-limit bill, also proposed legislation to establish a code of Conduct for Justices. This bill was passed by the Senate Judiciary Committee, but has not yet been subject to a vote on the Senate floor.⁴⁷ The House of Delegates of the American Bar Association called for the Supreme Court to adopt a binding code of ethics, and urged all other bar associations to pass similar resolutions calling for the same.⁴⁸ The idea is that such a code would result in a bolstering of the Court’s reputation and increased trust by the American people.⁴⁹

C. Implementation

At this point in time, it seems unlikely that Senate Republicans or the Republican-controlled House of Representatives will support a bill that places term limits on Supreme Court Justices, due to its predominately conservative stature, especially with their recent groundbreaking decisions on polarizing topics such as abortion. However, it appears unlikely that the Supreme Court will garner more support with the general American population any time soon. Polls have continued to show that a majority of Americans have been unhappy with the Supreme Court for at least a decade.⁵⁰ Certainly, bills such as Senator Whitehouse’s will continue to be proposed, and despite current lack of Republican support, the winds may change following future Supreme Court nominations and subsequent judicial decisions.

The solution for the public’s distrust in the Supreme Court may not come from any one concept, such as term limits or ethical codes. It may come from a combination of several different avenues of restrictions, limitations, and review of the Justices. However, this article argues that imposing term limits on the Supreme Court is not inherently unconstitutional when looking to the direct language of Article III, especially if a bill proposing term limits provides other ways for Justices to maintain some role on the federal judiciary following their eighteen-year term. Term limits may be successful in limiting the amount of undue politicization seen within the Supreme Court by allowing for quicker turnover of Justices, limiting the amount of time that a Justice may exert political influence over the court, and discouraging Justices from retaining their positions longer for reasons such as bribery or waiting for an opportune moment to be replaced by someone ideologically aligned with them. For this reason, discussions surrounding term limits and other means of reform for the Supreme Court should continue forward until progress is made.

IV. Conclusion

Our nation faces a challenge with distrust in the Supreme Court and concerns over undue influence amongst Justices. There are several methods of reform that have been proposed as possible solutions to this problem, with term limits being one of the more controversial ones. However, term limits can likely be done in a way that is constitutional and would serve to benefit the nation’s perception of the Supreme Court, while preventing stagnation and allowing for judicial modernization. While limiting the tenure of Supreme Court Justices could be beneficial to the functionality of the United States government, ultimately, the passage of the Supreme Court Biennial Appointments and Term Limits Act is unlikely at this time.

Kate Brewer

Kate Brewer is local to the Cincinnati area but received her BA in Political Science from the University of Tennessee. She is now a 2L at the University of Cincinnati College of Law. In addition to Law Review, Kate is an Article Editor for the Human Rights Quarterly and the External Affairs Coordinator for the International Law Society. Kate also enjoys spending time with her cats and studying Russian

References

1
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2
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3
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4
Monyak, supra note 1.
5
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6
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7
U.S. Const. art. III, § 1.
8
Good Behavior Clause: Overview, Cornell L. Sch. Legal Info. Inst., https://www.law.cornell.edu/constitution-conan/article-3/section-1/good-behavior-clause-overview (last visited Nov. 1, 2023).
9
U.S. Sup. Ct., supra note 6.
10
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11
Maggie Jo Buchanan, Term Limits Are Critical to Restoring Public Trust in the Supreme Court, Am. Progress (June 14, 2023), https://www.americanprogress.org/article/term-limits-are-critical-to-restoring-public-trust-in-the-supreme-court/.
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15
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18
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19
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23
Sam Gringlas, Trump Announces Amy Coney Barret As His Supreme Court Nominee NPR (Sept. 26, 2020, 7:00 AM), https://www.npr.org/sections/supreme-court-nomination/2020/09/26/916921211/trump-set-to-formally-announce-his-supreme-court-nominee.
24
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25
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26
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27
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28
Christopher Ingraham, Why It’s Time to Get Serious About Supreme Court Term Limits, The Wash. Post (Feb. 13, 2016, 8:47 PM), https://www.washingtonpost.com/news/wonk/wp/2016/02/13/why-its-time-to-get-serious-about-supreme-court-term-limits/.
29
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30
Erwin Chemerinsky, Supreme Court Need Term Limits, Orange Cnty. Reg. (Aug. 3, 2012, 12:00 AM),https://www.ocregister.com/2013/08/04/erwin-chemerinsky-supreme-court-needs-term-limits/.
31
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32
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34
Majority of Americans Support Supreme Court Reforms, Including Term Limits and Ethics Requirements, According to New UMass Amherst Poll, Univ. of Mass. Amherst (June 16, 2023), https://www.umass.edu/news/article/majority-americans-support-supreme-court-reforms-including-term-limits-and-ethics.
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36
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37
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38
Monyak, supra note 1.
39
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40
Whitehouse, Booker, Blumenthal, Padilla Introduce New Supreme Court Term Limits Bill, Sheldon Whitehouse (Oct. 19, 2023), https://www.whitehouse.senate.gov/news/release/whitehouse-booker-blumenthal-padilla-introduce-new-supreme-court-term-limits-bill.
41
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42
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43
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44
Supreme Court Ethics Act, S. 325, H.R.927, 118^th Cong. (2023).
45
Restoring Judicial Separation of Powers Act, H.R. 642, 118^thCong. (2023); Transparency Act of 2023, S. 359, H.R. 926, 118^th Cong. (2023).
46
Restoring Judicial Separation of Powers Act, H.R. 642, 118^th Cong. (2023); Transparency Act of 2023, S. 359, H.R. 926, 118^th Cong. (2023); Judiciary Act of 2023, S. 1616, H.R. 3422, 11^th Cong. (2023); Supreme Court Ethics Act, S. 325, H.R. 927, 118^th Cong. (2023); Supreme Court Biennial Appointments and Term Limits Acts, S. 3096, 118^th Cong. (2023); Supreme Court Code of Conduct Act, S. 1290, 118^th Cong. (2023).
47
Monyak, supra note 1.
48
Supreme Court Justices Should Follow Binding Code of Ethics, ABA House Says, Am. Bar Ass’n (Feb. 27, 2023), https://www.americanbar.org/advocacy/governmental_legislative_work/publications/washingtonletter/feb-23-wl/scotus-ethics-0223wl/.
49
Id.
50
Irwin, supra note 32; Hurley, supra note 27.