Conclusion

In sum, this working group proposes moving toward a system of regular appointments of Supreme Court justices. Under this system, future presidents would be empowered to appoint two new justices during each presidential term, and a new justice would be added to the bench every two years. Giving presidents some flexibility regarding the timing of their nominations would help to prevent impasses in the Senate that could disrupt the system of regular appointments. However, we also recommend changing the Senate rules to require a vote on nominations of Supreme Court justices within a reasonable time.

Justices would serve actively for eighteen years, after which they would remain in office but take “senior” status with a diminished set of duties. The current Supreme Court justices would not be required to take senior status and would be permitted to remain in active service as long as they wish. This would temporarily expand the Court. Ultimately, however, the Court would stabilize at nine justices and remain at that size indefinitely. In the event of an unexpected vacancy on the Court, a new justice would be appointed to fill the remainder of that term. After Chief Justice Roberts leaves the bench, the chief justice role would be assumed by another active-service justice who would be selected either through a seniority system or by a vote of the sitting justices.

We believe that justices appointed under this new system would remain “in office” for purposes of the Good Behavior Clause even after the conclusion of their eighteen years of active service. In addition, currently serving justices would not be impacted by the new system and would be able to serve in active status for as long as they otherwise would have served. For these reasons, we believe this system can be implemented by statute without running afoul of the Constitution. This makes our proposal more practical than other proposals that would require an amendment. It thus puts well within reach all of the benefits of true term limits, including reducing the polarization that results from the current nominations and confirmation process.