Should Supreme Court Justices Have Term Limits?

The confirmation of Justice Amy Coney Barrett to the Supreme Court just days before the 2020 presidential election intensified an ongoing debate about whether the process of appointing justices to the Court has become too politicized. Currently, justices have life tenure on the Court once they’re confirmed, so the stakes are high when presidents make new appointments to be confirmed by the Senate. One idea for reform that’s gaining support is to impose term limits on the justices so they’d serve a fixed number of years, rather than indefinitely. Two law professors face off about whether Supreme Court term limits are a good idea.

January 4, 2021

The current process for appointing Supreme Court justices is broken, and this is largely because of how lifetime tenure has distorted and politicized the system.

Justices often try to retire during the presidency of someone sympathetic to their judicial philosophy. This doesn’t always work—Justice Ruth Bader Ginsburg died trying to wait out President Trump. But, overall, this gives the justices too much power in picking their own successors. And that ability also creates the impression that the justices are more political actors than judges, which damages the rule of law.

No other major democracy in the world gives the justices on its highest court life tenure, nor do 49 of the 50 U.S. states. The longest terms are more like the 12-year terms served by German Constitutional Court justices. Countries and states that don’t have term limits have mandatory retirement ages; many places have both.

Term limits would depoliticize the Court and the nomination process.

The American system of life tenure gives some presidents too much influence on the Supreme Court and others too little. Four presidents have appointed six or more justices, while four other presidents have appointed none. And historically, some justices have remained on the Court when they are unable either physically or mentally to do the job.

The solution is for Republicans and Democrats to unite in supporting a constitutional amendment that fixes the size of the Supreme Court at its current nine justices, each of whom would serve an 18-year nonrenewable term. Terms would be staggered so that one-term presidents would be guaranteed two appointments; two-term presidents would get four.

An 18-year term is long enough for justices to remain plenty independent. And presidents would no longer have an incentive to pick younger nominees in order to influence the Court decades into the future.

Term limits would depoliticize the Supreme Court and the now-poisonous process of selecting new justices and thus promote the rule of law.

—STEVEN CALABRESI

Professor of Law, Northwestern University

When the Founders adopted the Constitution, they wisely gave judges their jobs for life. In Federalist 78, Alexander Hamilton explained that lifetime tenure ensures that judges will decide cases free from political pressures. This “independent spirit,” he said, helps guarantee that judges will perform their duties neutrally and provides the foundations for the rule of law.

Amending the Constitution to impose term limits on Supreme Court justices threatens this independence. Justices may seek to please those who could offer them a job after their term ends. Regardless of their efforts to do the right thing, justices are fallible human beings too. Because the Court’s legitimacy depends on public confidence, even the appearance of favoring special interests could damage its integrity.

Supporters of term limits argue they would prevent justices from hanging on too long to their jobs and lead to less political fighting over Supreme Court appointments. But where is the proof? While a few of the 115 justices in American history may have served too long, there’s no link between the length of a justice’s career and the quality of their work. Justice Ruth Bader Ginsburg recently died at age 87 after 27 years on the Court. No one raised doubts that her faculties had declined.

Imposing term limits on Supreme Court justices threatens their independence.

Political fighting over judicial appointments erupts not because of lifetime tenure but because of judicial decisions. The justices have steadily added more and more important social issues to their docket. This deprives the normal electoral and political processes of the power to decide. Anyone who cares deeply about race, religion, free speech, abortion, or gay marriage can advance their views only by influencing the appointment of federal judges, rather than working to win elections. It’s no surprise that confirmation hearings now resemble electoral campaigns.

Amending the Constitution to impose term limits on the Supreme Court won’t solve the problem of politicized nominations, and it may create even more problems we can’t anticipate. The Constitution isn’t broke, so don’t fix it.

—JOHN YOO

Professor of Law, University of California at Berkeley