Debate Desk
Should Supreme Court Justices Face Term Limits Instead of Life Tenure?
Life tenure was meant to protect independence; term limits have some conservative backers, and an amendment is the safer route than a statute.
The claim
Supporters say that justices today serve for decades, that life tenure gives outsized influence to chance of timing in vacancies, and that fixed terms of about eighteen years would regularize appointments and lower the stakes of each confirmation.
The answer in three points
- Article III says judges "shall hold their Offices during good Behaviour." Hamilton defended this in Federalist 78 as the best way to secure an independent judiciary, because a judge who will not need a new job in a few years can rule without fear or favor.
- Term limits have attractions, and some conservatives support them. They would regularize appointments, give each president the same number of nominations and lessen the incentive to pick the youngest nominee. It is a serious proposal and is worth discussing.
- The method matters. Many scholars believe that a statute that removes sitting justices from the Court's active service after a term would violate Article III, and that a constitutional amendment would be the sound way. Changing the structure of the Court by ordinary law because of dissatisfaction with its current members invites future changes in return.
Reasonable people disagree on the wisdom of fixed terms. The route to any change should respect the constitutional text and the independence the framers prized.
The numbers
- Article III, Section 1 of the Constitution provides that judges shall hold their offices during good behaviour.
- Federalist No. 78, written by Alexander Hamilton in 1788, defended judicial tenure during good behavior as essential to the independence of the courts.
- Proposals for eighteen-year terms with staggered appointments every two years have been advanced by legal scholars across the political spectrum, according to published law review articles.
What they will say next
"Justices serve too long." Average tenures have lengthened with longer life spans. A longer term comes with experience, and some justices have retired well before reaching an advanced age.
"Some states have term limits for judges." Many state judges face election or fixed terms, which has its own problems with money and politics. The federal courts were built differently.
"Every president should get picks." They do over time, and the luck of vacancies has been part of the system since the start. Fixed terms would change that, with costs and benefits.
"An amendment is too hard." It is meant to be hard, and good ideas can pass it. Serious reforms deserve the effort.
If the Court's structure is to change, change it by the road the Constitution provides.
"Presidents time retirements for political reasons." Some justices have done so, and that is a real feature of life tenure. A norm of retirement at a certain age or an amendment with staggered terms would reduce the practice, and either path respects the Constitution more than a statute that tries to push sitting justices aside.