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Note on Terminology

The reform discussed in this paper is popularly known as “term limits,” and, due to the ubiquity of that phrase, we use it here. However, we caution that it does not accurately reflect the content of our proposal. The plan outlined in the following pages intentionally avoids limiting the amount of time that Supreme Court justices may serve in their roles. Instead, the system we propose would merely alter the job duties associated with the role of Supreme Court justice over the course of a life term.

The working group considered numerous alternative names for this arrangement, including “time rules,” “bifurcated terms,” “staggered terms,” “rotating service,” and “phased service.” Several members of our group feel that, of these, “phased service” best captures the nature of the proposal. However, since “term limits” is the name most used by the public, the media, and other scholars, some felt that adopting a new name could be unnecessarily confusing. We encourage continued consideration of alternative terms that more accurately reflect the reform.
 

The Working Group

The bipartisan working group that produced this paper consists of top constitutional scholars and political scientists from across the country. The �����Ƶ convened this diverse group in June 2022 as an independent offshoot of its efforts to advance the recommendations of Our Common Purpose: Reinventing American Democracy for the 21st Century, the 2020 report of the �����Ƶ’s bipartisan, multidisciplinary Commission on the Practice of Democratic Citizenship.7 That report contends that political institutions, civic culture, and civil society reinforce one another, and that progress must urgently be made across all three areas to build a healthier democracy. To that end, the bipartisan Commission reached unanimous agreement on six broad strategies and thirty-one specific recommendations to improve American democracy.8 Among these are eighteen-year terms for Supreme Court justices. In advocating this reform, the Commission observed that,

with increased lifespans since the eighteenth century, a justice may serve for a generation or longer, often decades more than the framers are likely to have imagined. Add to the mix the deepening polarization on the Court, in which most high-profile and high-impact decisions are 5–4 rulings, and the actuarial luck of the draw, with one president filling many Supreme Court vacancies and another president few or none, and it is no wonder the power to make Supreme Court appointments has become such a contentious part of the presidential election process.9

The Commission went on to state that a system of regularized, eighteen-year terms could help reduce the stakes of the nomination process and “help move the Court toward a less partisan future.”10 The Commission also asserted that this might be accomplished without running afoul of the Constitution’s life tenure requirement by transferring justices to “senior status” with reduced duties at the end of their eighteen-year terms, rather than forcing their retirement.11 However, the Commission left open a great number of questions as to how such a system would work. For instance: How would a transition to term limits be handled? What should be the scope of justices’ post-term duties? How would unexpected vacancies be filled? The �����Ƶ convened this working group to try to resolve these and other crucial questions. The working group deliberated over eight months, systematically working through these issues and reaching consensus on each. This paper summarizes the conclusions the group has drawn.
 

Endnotes

• 7American �����Ƶ of Arts and Sciences, Our Common Purpose.
• 8Ibid., 5.
• 9Ibid., 30–31.
• 10Ibid., 31.
• 11Ibid.

Problematic Features of Life Tenure with Uniform Job Duties

Article III of the Constitution entitles federal judges to hold their offices for life “during good Behaviour.” Because average lifespans have increased dramatically, a life term today is potentially much longer than it was when the Constitution was drafted. The average American life expectancy in 2021 was 76.1 years.12 By contrast, historians estimate that the average life expectancy at birth for an American white male in the late eighteenth century was just over half that, around 44 years.13 If one survived past childhood, the odds of a long life improved, but a 25-year-old white male in 1790 still could expect to live only to the age of approximately 63.14 Given the increase in life expectancies since that time, the concomitant increase in Supreme Court terms is not surprising. While the median length of service for justices historically is 18.5 years, those appointed after 1990 who have left the bench served, on average, for 26.3 years.15 The average age upon leaving the Supreme Court has also increased.16

In addition, because a sitting justice must vacate a seat for an appointment opportunity to arise, new Supreme Court appointments are not evenly distributed across presidencies. Rather, they arise due to a combination of random chance (what Our Common Purpose terms “actuarial luck of the draw”) and strategic behavior by the justices.17 Thus, while some presidents have nominated as many as four justices in a single term, others have nominated none.18 This variation at best “serves no obvious structural purpose.”19 At worst, it creates a sense of unfairness among voters who fail to see their electoral will reflected in the Court.20

These characteristics of the current system combine both to undermine the effectiveness of the democratic check on the Court exerted by the appointment and confirmation process and to increase the stakes of each individual nomination. As Steven Calabresi and James Lindgren explained in a 2006 paper, presidents fortunate enough to be in office during a “hot spot” in which numerous vacancies become open in quick succession can “contribute to the Court being out of step with the American people’s understanding for long periods of time.”21 Meanwhile, “the irregular occurrence of vacancies on the Supreme Court means that when one does arise, the stakes are enormous, for neither the President nor the Senate can know when the next vacancy might arise.”22 For this reason, “Supreme Court appointments have become politically contentious not only because the justices exercise great power but because they exercise it for so long.”23

The current system also encourages, or at least permits, certain types of problematic strategic behavior. It is advantageous for presidents to nominate jurists who are young and thus might serve longer-than-average terms.24 While including younger members on the bench might yield some benefits, the systematic exclusion of the nation’s most experienced legal minds from our top court is far from ideal.

Even more troubling, justices may time their retirements to maximize the chance that an ideologically aligned successor will be confirmed. While the motivations behind any individual justice’s retirement decision are difficult to know, the evidence for this type of behavior is ample. Justices are more likely to retire while the president is of the same party that nominated them than when the president is of the opposite party.25 More directly, on multiple occasions justices have made known their partisan reasons for retiring (or not retiring) through public or private statements.26 In one particularly colorful example, Justice Thurgood Marshall joked with his clerks that, if he passed away during the Republican administrations of the late 1980s and early 1990s, they should “prop [him] up and keep on voting.”27 Older justices also face public pressure campaigns to encourage them to retire during ideologically friendly administrations.28 Before Justice Stephen Breyer stepped down in 2021, for instance, a billboard truck emblazoned with “retire, Breyer” circled the Supreme Court building.29

Strategic retirements are concerning for two main reasons. First, they allow justices to shape the Court well past their own tenure.30 Second, even the perception that justices time their retirements for partisan reasons may reinforce the belief that the Court is a partisan body, undermining its legitimacy.31 Partisanship increasingly colors Americans’ views of the Court, and Americans increasingly view the Court as a partisan institution. Some arguably political aspects of the Court’s current role could not have been foreseen by the drafters of the Constitution in 1787. For instance, since 1925, the Supreme Court’s jurisdiction has been almost entirely discretionary. The justices cull through approximately seven thousand cases a year and pick the seventy (i.e., 1 percent) that seem most important. This is an inherently policy-based process that may influence perceptions of the Court as a nonpolitical body.

Finally, the United States is unique in granting lifetime tenure to Supreme Court justices.32 Most established democratic nations and all but one U.S. state have either fixed terms or mandatory retirement for judges on their highest courts. Domestically, Rhode Island is the only state with unchecked life tenure for its state supreme court.33
 

Endnotes

• 12Elizabeth Arias, Betzaida Tejada-Vera, Kenneth D. Kochanek, and Farida B. Ahmad, “,” Vital Statistics Rapid Release, no. 23 (August 2022), 2.
• 13J. David Hacker, “,” Historical Methods 45 (2) (April 2010): 68.
• 14Ibid.
• 15Adam Chilton, Daniel Epps, Kyle Rozema, and Maya Sen, “,” Southern California Law Review 95 (2021): 16. See also Steven G. Calabresi and James Lindgren, “Term Limits for the Supreme Court: Life Tenure Reconsidered,” Harvard Journal of Law and Public Policy 29 (3) (2006): 778 (calculating the average tenure of justices who left the bench from 1789–1820 to be 7.5 years and the tenure of justices who left the bench from 1971–2000 to be 26.1 years).
• 16Calabresi and Lindgren, “Term Limits for the Supreme Court,” 782.
• 17American �����Ƶ of Arts and Sciences, Our Common Purpose, 31; Calabresi and Lindgren, “Term Limits for the Supreme Court,” 782; and James E. DiTullio and John B. Schochet, “Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered Nonrenewable Eighteen Year Terms,” Virginia Law Review 90 (2004): 1116–1119.
• 18DiTuillio and Schochet, “Saving This Honorable Court,” 1118.
• 19(Washington, D.C.: The White House, 2021), 112 (hereinafter referred to as “PCSCOTUS Report”).
• 20Chilton et al., “Designing Supreme Court Term Limits,” 11.
• 21Calabresi and Lindgren, “Term Limits for the Supreme Court,” 811.
• 22Ibid., 813.
• 23Paul D. Carrington and Roger C. Cramton, “The Supreme Court Renewal Act: A Return to Basic Principles,” in Reforming the Court: Term Limits for Supreme Court Justices, ed. Roger C. Cramton and Paul D. Carrington (Durham, NC: Carolina Academic Press, 2006), 468.
• 24DiTuillio and Schochet, “Saving This Honorable Court,” 1113.
• 25Calabresi and Lindgren, “Term Limits for the Supreme Court,” 805.
• 26DiTuillio and Schochet, “Saving This Honorable Court,” 1101–1105.
• 27Ibid., 1103.
• 28See, for example, Matt Viser, Tyler Pager, Seun Min Kim, and Robert Barnes, “,” The Washington Post, January 29, 2022.
• 29Ibid.
• 30DiTuillio and Schochet, “Saving This Honorable Court,” 1110.
• 31PCSCOTUS Report, 115.
• 32Ibid., 112.
• 33Ibid.

Public Views of the Court

As high levels of partisan polarization and decreasing public trust have come to characterize the American political landscape, the Court and its legitimacy have also become increasingly controversial. The Pew Research Center reports that more Americans have a negative view of the Supreme Court (49 percent) than at any time in its three decades of polling the subject.34 Gallup, likewise, reports that trust in the judicial branch is at its lowest level (46 percent) since it began polling the question in 1972.35

Meanwhile, the partisan gap in views of the Court is the largest it has ever been: 73 percent of Republicans view the Court favorably, compared with 28 percent of Democrats.36 Only about one-third of Americans say they believe the Court does a good or excellent job of keeping personal politics out of decision-making.37 In contrast, two-thirds of Americans—i�Գ����ܻ徱�Բ� majorities of voters from both major parties—support term limits for Supreme Court justices.38
 

Endnotes

• 34Pew Research Center, “Positive Views of Supreme Court Decline.”
• 35Jeffrey M. Jones, “,” Gallup, September 29, 2022.
• 36Pew Research Center, “Positive Views of Supreme Court Decline.”
• 37Ibid.
• 38Jessica Gresko and Emily Swanson, “,” AP News, July 25, 2022.

Prior Scholarship on Term Limits

While Our Common Purpose inspired the creation of this working group, efforts to reimagine life tenure on the Supreme Court long predate that report. Thomas Jefferson, for example, believed life tenure to be incompatible with a republican form of government and favored four- or six-year terms for federal judges.39 In the modern era, term-limit proposals have come from across the ideological spectrum and vary widely in their details.40 While most have recommended eighteen-year terms, a few have suggested terms that are longer or shorter.41 Existing proposals take divergent approaches to how and when a transition to time-limited terms would take place, the extent to which currently serving justices would be impacted, and how unexpected vacancies would be filled.42 Items like the method for designating a chief justice and whether steps should be taken to reduce the chance of a Senate impasse have been addressed by some proposals but not others.43
 

67% of Americans—i�Գ����ܻ徱�Բ� 57% of Republicans and 82% of Democrats—support term limits for Supreme Court justices, according to The Associated Press-NORC Center for Public Affairs Research. The partisan gap in support for the Supreme Court is the widest it has been in decades, according to the Pew Research Center. 73% of Republicans say they have a favorable view of the Court, while only 28% of Democrats share that view.

One question that is central to the modern debate is whether adjustments to the current system can be accomplished by statute. While some scholars have concluded that a constitutional amendment is the best (or only) pathway for reform, others have agreed with the view, first popularized in a 2002 Washington Post op-ed, that “there are a variety of measures, short of amending the Constitution, by which Congress and the president could move future justices toward a tradition of fixed terms.”44 Proponents of this view generally agree that removing justices from the bench after a set number of years would require a change to the Constitution. However, they believe that similar benefits may be achieved by adjusting the justices’ job duties or jurisdiction within constitutional limitations.

Modeling of the possible effects of various term-limit proposals has shown that they generally reduce the likelihood of extreme ideological imbalance in either direction on the Court and lead to greater stability and predictability by decreasing variance in the number of justices appointed by each president.45 The time required before these benefits take hold depends on the mechanism of transition set out in the proposal.46 Other specifics, such as the manner in which unexpected vacancies are filled, also impact the degree to which these positive outcomes are achieved.47
 

Endnotes

• 39Calabresi and Lindgren, “Term Limits for the Supreme Court,” 773 (citing letters written by Thomas Jefferson).
• 40See Chilton et al., “Designing Supreme Court Term Limits,” 26–31 (reviewing the details of several existing term-limit proposals).
• 41See, for example, Philip D. Oliver, “Systematic Justice: A Proposed Constitutional Amendment to Establish Fixed, Staggered Terms for Members of the United States Supreme Court,” Ohio State Law Journal 47 (4) (1986): 822 (recommending eighteen-year terms); Calabresi and Lindgren, “Term Limits for the Supreme Court,” (same); Carrington and Cramton, “The Supreme Court Renewal Act,” (same); Akhil Amar, “In Support of a Congressional Statute Establishing an Eighteen-Year Limit on Active Supreme Court Service, with Emeritus Status Thereafter and a Purely Prospective Phase-In” (testimony prepared for “,” public meeting of the Presidential Commission on the Supreme Court of the United States, July 20, 2021), (same); Akhil Reed Amar and Steven G. Calabresi, “,” The Washington Post, August 9, 2002, (same); DiTuillio and Schochet, “Saving This Honorable Court,”1119 (same); Mark R. Levin, The Liberty Amendments: Restoring the American Republic (New York: Threshold Editions, 2013), 49–50 (recommending twelve-year terms); and Henry Paul Monaghan, “,” Harvard Law Review 101 (1988): 1212 (recommending fifteen- or twenty-year terms).
• 42See Chilton et al., “Designing Supreme Court Term Limits,” 26–31.
• 43Ibid.
• 44Amar and Calabresi, “Term Limits for Supreme Court Justices.”
• 45Chilton et al., “Designing Supreme Court Term Limits,” 63.
• 46Ibid., 63–64.
• 47Ibid., 65–66.

Presidential Commission on the Supreme Court of the United States

In April 2021, President Joe Biden issued an executive order creating the Presidential Commission on the Supreme Court of the United States.48 That body was charged with producing an “analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals,” including term limits. The Presidential Commission’s final report comprehensively lays out the arguments for and against term limits. Because the Commission interpreted its mandate as prohibiting it from taking a position on any reform, however, it stopped short of making judgments as to the strength of those arguments or suggesting new approaches.

This working group’s deliberations were shaped considerably by the work of the Presidential Commission and its final report.49 The working group’s proposal tracks the debates and open questions outlined in the Presidential Commission’s report with the aim of building on that work and recommending resolutions to those questions and concerns.

Endnotes

• 48PCSCOTUS Report, appendix A.
• 49Several working group members either served on the Presidential Commission (Guy-Uriel Charles, Caroline Fredrickson, and Kermit Roosevelt) or provided expert testimony to it (Akhil Reed Amar, Dan Epps, Charles Fried, Amanda Hollis-Brusky, and Maya Sen). PCSCOTUS Report, appendices B and E.