Eighteen-Year Term Limits for Justices Sound Tidy Until You Read Article III

The proposal sounds like the most reasonable thing in the world. Eighteen years, one justice every two years, each president gets two appointments a term, and the whole nasty business of death-watch confirmations goes away. It is tidy. It is symmetrical. It has the sort of arithmetic that people who write op-eds love, and it has been endorsed by serious people on the right as well as the left.

Then somebody reads Article III, and the tidy plan begins to resemble a man trying to carry a piano up a spiral staircase. The text is not a technicality. It is the heart of the argument, and the argument deserves a hearing from both conservative camps before I tell you where I come down.

What the Text Says

Article III, Section 1 provides that "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

Read that sentence the way a lawyer reads a contract. Judges hold "their Offices" during "good Behaviour." The phrase has a history: it comes from English law, where the Act of Settlement of 1701 had secured judges against removal at the Crown's pleasure. The Founders adopted the principle and wrote it into the Constitution. The only way a federal judge loses his office is by impeachment and conviction under Article II, Section 4, for "Treason, Bribery, or other high Crimes and Misdemeanors," or by resigning, retiring or dying.

Two features of that sentence matter for what follows. First, the tenure runs to "the judges, both of the supreme and inferior Courts." There is no distinction between the Supreme Court and the courts below. Second, the clause protects the office, which is held "during good Behaviour." It is not a promise of a seat on a particular court. That second feature is the loophole that term-limit advocates try to use, and I will come back to it.

Why the Founders Chose It

The Founders were not careless about this. Hamilton devoted Federalist 78 to the judiciary and spent much of it on the argument for permanent tenure. He called the judiciary the "least dangerous" branch, because it has "neither force nor will, but merely judgment," and then argued that a judge who holds his office at someone's pleasure cannot be relied on to judge. His line on the point is worth quoting exactly: "Nothing can contribute so much to its firmness and independence as permanency in office." He added that "that inflexible and uniform adherence to the rights of the constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission."

The Founders were reacting to something concrete. The Declaration of Independence lists among George III's offenses that "He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries." The American answer was to cut that dependence at the root: tenure for good behavior and a salary that cannot be reduced.

I'd also point to the other great argument for life tenure, which follows from the same logic. A judge who knows he will serve for life and will not have to look for work after his term has no reason to cultivate a future employer. A judge with a fixed term does. We have all met a person approaching the end of a job who is already thinking about the next one, and we know whom he is trying to please.

The Steelman: The Case for Limits

Here is the best case for term limits, in the language its conservative advocates use.

One: the Founders did not foresee modern lifespans. When the Constitution was ratified, a justice who served fifteen years was a long-serving justice. Today, justices routinely serve for three decades. John Marshall, the longest-serving chief justice, sat for thirty-four years, from 1801 to 1835, which was extraordinary in his time. William O. Douglas served thirty-six years, from 1939 to 1975. The modern pattern of long tenures has changed the character of the Court.

Two: the stakes of each vacancy have become enormous. Because a seat may last thirty years or more, each vacancy is treated as a prize, and the confirmation fight has become a national campaign. The age and health of justices has become a subject of political speculation, which is undignified for the institution. A system of regular, predictable vacancies would lower the temperature.

Three: a fixed schedule is fairer. In an eighteen-year system with a vacancy every two years, each president would appoint two justices during a four-year term, no more and no fewer. Nine seats times two years per seat is eighteen years, and the arithmetic comes out even. The plan removes luck from the process. Today, one president can appoint three justices in a single term, while another appoints none.

The most developed conservative version of this idea came in a 2006 article by Steven Calabresi, a co-founder of the Federalist Society, and James Lindgren, published in the Harvard Journal of Law and Public Policy under the title "Term Limits for the Supreme Court: Life Tenure Reconsidered." They argued for staggered eighteen-year terms. It is a serious argument from serious scholars, and it is not the argument of a man who wants to punish the Court. It is the argument of people who love the institution and want to protect it.

The Statutory Shortcuts, and Why They Likely Fail

The challenge is how to get there. A constitutional amendment under Article V requires two-thirds of both chambers of Congress and ratification by three-fourths of the states, which is hard. So some scholars have proposed doing it by ordinary legislation, and the proposals take a few forms.

One proposal would have the Court's justices serve for eighteen years as active justices and then transfer to a different role: senior status on the Supreme Court, or an assignment to a lower court. The argument runs that Article III protects the judge's office, not his seat on the high court, so Congress may reassign him after eighteen years while he keeps his salary and tenure.

I think that argument has a problem. The Constitution speaks of "one supreme Court" and of the judges "of the supreme and inferior Courts." The Appointments Clause, in Article II, Section 2, says the President shall nominate, and with the Senate's consent appoint, "Judges of the supreme Court." A person appointed as a justice of the Supreme Court is appointed to that office. A statute that moves him out of it, even to a position of equal pay, is effectively removing him from the office to which he was confirmed, short of the impeachment the Constitution requires. If you can do that after eighteen years, you can do it after eight, or after the first ruling someone dislikes. The shortcut proves too much. Each version of the statutory plan has to answer one question: what happens to the justice's authority to decide cases at the end of eighteen years? If he keeps it, there is no term limit. If he loses it, there is a removal without impeachment.

That is why most serious defenders of limits say the real fix is an amendment. And I think they are right about the law, even where I disagree about the policy.

The Other Conservative View: Leave It Alone

Here is the other camp, and it has a case too.

First, life tenure works as designed. The independence it gives is not an accident. It is what lets a justice rule against the president who appointed him, which has happened to presidents of both parties. A justice with eighteen years in the chair and no plans for retirement has no reason to treat any party as his future patron. Remove the tenure and you introduce the prospect of the future job.

Second, the confirmation fights are not caused by tenure. They are caused by the Court's power. If the Court decided a narrower range of questions, the fights would be smaller. If a justice were to serve eighteen years instead of thirty, the temperature would not necessarily fall, because the fight would be repeated every two years, in every presidential term, in every election cycle. We would have a Supreme Court nomination, permanently, on the ballot.

Third, the amendment would take the Court's calendar and give it to the political one. Under an eighteen-year schedule, every president knows in advance how many seats he will fill. Under the current system, the actual vacancies come through death and retirement, which no one controls. That randomness is a feature, because it means no one can plan to capture the Court. A fixed schedule would let a party plan for it.

Fourth, the Founders knew about the risk of a captive judiciary and chose against it. Hamilton's argument is not a quirk of eighteenth-century thinking. It is a claim about human nature that still holds.

My Verdict

Let me lay out the answer in the point-by-point structure: a premise, an objection, an answer, a conclusion.

1. The Constitution protects tenure in the office for good behavior, and the plain reading is that a justice may serve for life unless he is impeached. The statutory plans to rotate justices out of the high court are, at best, arguable, and at worst a way to remove a justice without the impeachment the text requires.
2. If limits are desirable, the constitutional route is the honest one. Article V exists for this purpose. A change that cannot win two-thirds of Congress and three-fourths of the states should not be sneaked in by a simple majority.
3. On the merits, I side with the Founders' design. The problem of long tenures is real, but the cure is worse than the disease. Eighteen-year terms would make the Court a permanent subject of every presidential campaign, and a justice's last years would come with the prospect of a next job.
4. The sensible response to the problems is smaller and does not require an amendment. Reasonable steps include a Senate that treats confirmation as a deliberation and not a campaign, a President who nominates judges for their method and not their age, and a public that understands what the Court does. Those habits are worth more than a clause.

I recognize that some thoughtful conservatives will weigh the same facts and reach the other result. Calabresi and Lindgren did. The disagreement is honest, and conservatives should not treat it as a litmus test. What conservatives should agree on is the process: if the Constitution is to be changed, it is to be changed through Article V, openly, by the people's representatives and the states.

The Reform Everyone Forgets: The Founders' Own Remedy

Before I leave the subject, I want to mention the Founders' remedy for a bad justice, because it is almost never discussed. It is impeachment. Samuel Chase, a Supreme Court justice, was impeached by the House in 1804 and acquitted by the Senate in 1805. The Senate's acquittal is widely read as a rejection of the idea that disagreement with a judge's rulings is grounds for removal. We covered that story in Samuel Chase's 1805 Impeachment and Why Judges Are Not Removed for Their Rulings. The practical lesson is that the Founders built the means to remove a judge who violates his oath, and they wanted that means to be rare and serious, not routine.

Seen against that background, the movement for term limits is a movement to replace a rare process with a regular one. That is the choice. You may prefer the regular one. I think the Founders' judgment, formed after living under a king, deserves more respect than we usually give it.

Related reading: the debate about the Court's size, in Nine Justices Since 1869, and Why the Number Should Stay Nine; how federal judges retire, in Senior Status, the Rule of 80 and Other Questions About How Judges Retire; and the broader constitutional view of the judiciary, in Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right?. The full text of Article III is on the Constitution page.

The case in brief

1. Article III provides that judges "shall hold their Offices during good Behaviour," and the plain reading is tenure for life unless impeached and convicted.
2. Federalist 78 defends permanent tenure as the best protection for judicial independence, and the Declaration lists dependent judges among the grievances against the King.
3. Conservatives disagree in good faith: advocates of eighteen-year staggered terms, including Calabresi and Lindgren, point to modern lifespans and the stakes of vacancies, while others see life tenure as the guarantee of independence.
4. Statutory rotation schemes are constitutionally doubtful because they remove a justice from the office to which he was confirmed without impeachment, so a real term limit would require an amendment under Article V.
5. On the merits, the Founders' design is better than the tidy alternative, and the remedy for confirmation fights is better habits in the Senate and the White House.

What you can do: read Article III, Section 1 and Federalist 78 in full, then write to your senators asking them what they think the process for changing the Court should be, if it is ever to change.