What you need to know about Supreme Court Reform and Term Limits for Justices

Many people have been asking me about what term limits for Supreme Court justices would look like and whether they are even permissible. Here is my opinion:

While seemingly reasonable at a cursory glance, the proposition of instituting limits for Supreme Court justices is fundamentally flawed and damaging to the principles upon which our judicial system is built. The Supreme Court, as an institution, is designed to be a bulwark against the vicissitudes of political pressures and transient public opinions. Lifetime appointments ensure that justices are insulated from the temptations of seeking favor with political factions or worrying about their reappointment. This insulation is crucial to maintaining an independent judiciary, which is indispensable for the fair and impartial interpretation of the Constitution. While term limits may be appropriate for judges in lower courts (and I believe they should be mandatory), they are fundamentally inappropriate for the Supreme Court of the United States.

The late Justice Scalia often emphasized the importance of adhering to the original meaning of the Constitution and the intent of the framers, which are outlined in various documents of the era. In their profound wisdom, the framers opted for lifetime appointments to the Supreme Court precisely to protect judicial independence. They recognized justices, who are tasked with the solemn duty of interpreting the nation’s supreme law, must be free from distractions and influences that term limits would inevitably introduce. Limiting the terms of Supreme Court justices would be a departure from this original intent, undermining the very stability the framers sought to ensure.

Furthermore, term limits could exacerbate the politicization of the judiciary. With fixed terms, the appointment process would become more frequent, opening the door to increased partisan maneuvering and strategic retirements. Each new appointment would become a political battleground, with justices potentially timing their retirements to align with a president whose judicial philosophy mirrors their own. This would undermine the principle that judicial decisions should be based solely on the color of the law, not politics, opinions, or emotions, and risk transforming the Court into a political extension rather than an independent arbiter of the law.

Finally, the imposition of term limits risks depriving the Court of experienced and wise jurists. The value of longevity on the bench cannot be overstated; it allows justices to develop a deep and nuanced understanding of the law, contributing to more thoughtful and informed decisions. Justices who serve long terms, like Chief Justice John Marshall and Justice William O. Douglas, and more modern-day justices like Justice William Rehnquist, Justice Clarence Thomas, Justice Antonin Scalia, and Justice Ruth Bader Ginsburg, bring a wealth of experience and historical perspective that is vital for the sound development of jurisprudence. Term limits would curtail this accumulation of judicial wisdom, leading to a less effective and respected Supreme Court. In sum, introducing term limits for Supreme Court justices is a misguided reform that threatens our highest judicial institution’s independence, stability, and integrity.

Against that backdrop, the Constitution of the United does not explicitly provide for term limits for Supreme Court justices. The design can be traced back to several fundamental principles and intentions held by the framers of the Constitution.

1.    Term Limits Undermining Judicial Independence:

Lifetime appointments ensure that justices are free from political pressures and influence and foster an independent judiciary. This principle is rooted in Federalist No. 78, where Alexander Hamilton argued that lifetime tenure is essential to ensure judges can make decisions based on the law without fear of political repercussions. (The Federalist No. 78, Alexander Hamilton).

2.    Term Limits Erode Stability and Consistency:

Lifetime tenure contributes to the stability of the judiciary by providing continuity in legal interpretations and decisions. The importance of judicial stability was highlighted in cases like Planned Parenthood v. Casey, where the Supreme Court emphasized the significance of adhering to precedent to maintain legal consistency (Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992)).

3.    Term Limits Politicize Appointments:

Term limits could make the appointment process even more contentious and politically charged. The Senate confirmation battles over justices such as Brett Kavanaugh and Amy Coney Barrett already illustrate the intense political struggles involved in Supreme Court appointments. More frequent vacancies could exacerbate this issue (Confirmation Hearing on the Nomination of Brett M. Kavanaugh to Be an Associate Justice of the Supreme Court of the United States, 115th Cong. (2018)).

4.    Short-Term Thinking

Justices with limited terms might focus on short-term impacts rather than long-term principles and precedents. The principles of stare decisis, which emphasize the importance of precedent, rely on a stable judiciary to develop a coherent body of jurisprudence over time (Planned Parenthood v. Casey, 5025 US at 854).

5.    Term Limits Would Lead to a Loss of Experience and Expertise

Lifetime appointments allow justices to accumulate extensive experience and expertise. The benefits of judicial experience are evident in complex cases like Brown v. Board of Education, where the Court’s deep understanding of constitutional principles was crucial in its landmark decision (Brown v. Board of Education, 347 U.S. 483 (1954)). 

6.    Term Limits Cause a Potential for Increased Turnover and Disruption

Implementing term limits would likely lead to more frequent changes in the composition of the Supreme Court, causing disruptions. The importance of a stable and predictable judiciary was underscored in Marbury v. Madison, which established the principle of judicial review and emphasized the need for a consistent judicial system (Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803.))

7.    Terms Limits Defy Historical Intent and Tradition

The framers of the Constitution Designed the judiciary to be insulated from political and public pressures, although that is not always the case in lower courts. The Federalist Papers, particularly Federalist No. 78, reflect the framer’s intent to create a judiciary that operates independently of the other branches of the government (The Federalist Papers No. 78, Alexander Hamilton).

8.    Challenges of Implementation

Instituting term limits would require a constitutional amendment, a process that is intentionally difficult and requires broad consensus. Article V of the Constitution outlines the amendment process, which involves approval by two-thirds of both houses of Congress and ratification by three-fourths of the state legislates (U.S. Const. art. V).

While not all-encompassing, my opinion does provide a legal foundation for some of the arguments against imposing term limits on Supreme Court justices, emphasizing the importance of judicial independence, stability, and adherence to the framers' original intent.

President Biden’s proposal to reform the Supreme Court, including imposition of term limits, is severely misguided. Such reforms threaten to undermine the foundational principles of judicial independence and stability essential for a fair and impartial judiciary. Lifetime appointment, as envisioned by the framers of the Constitution, ensures that justices can make decisions based solely on the law, free from political pressures and influence. Term limits would erode this independence and lead to increased politicization of the appointment process, loss of judicial experience and expertise, and potential disruption of the Court’s work. These changes would fundamentally alter the balance of power and the structure of the judiciary, ultimately compromising the integrity and consistency of the legal system. As Justice Scalia aptly warned, “A judiciary independent of a king or a president is essential if there is a right to be left alone by government.” Thus, maintaining the current system of lifetime tenure for Supreme Court justices is crucial for preserving the principles and rule of law.

Dan Nardo, Partner | Nardo & Associates | dnardo@nardoassociates.com