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Make the Supreme Court Less Political. Put Term Limits on Justices.

Stephen B. Heintz and Pete Peterson
Real Clear Policy

Even before Amy Coney Barrett was announced as President Trump’s nominee to fill the Supreme Court seat left vacant after the death of Ruth Bader Ginsburg, Republican senators made clear their intention to confirm a new justice prior to the 2021 presidential inauguration. This entire process has been met with anger from Democrats, who pointed to Republicans’ refusal to hold a vote on Barack Obama’s Court nominee in 2016 on the grounds that it was an election year. As it was four years ago, the Supreme Court has become a contentious battleground in Democrats’ and Republicans’ jockeying for power in Washington.

The loser in these fights is none other than the Supreme Court itself. The Court was designed by the founders of this nation to serve as an independent arbiter of justice, divorced from the political squabbling that the authors of the Constitution expected in Congress. When nominations become partisan contests, the Court loses its luster as a body meant to interpret the law outside the influence of politics.

It does not have to be this way. Congress should enact term limits for Supreme Court justices. Term limits, coupled with a regular appointment schedule, would depoliticize the appointment process, move the Court toward a less partisan future, and help restore public faith in our democratic institutions.

The Constitution is vague about justices’ length of service on the Supreme Court. Justices retain their offices “during good behavior,” which has long been interpreted as a life term. However, the Constitution does not explicitly establish the type of judicial work done during a life term, nor does it prevent Congress from enacting term limits. Under a term limits system, justices could retire or transfer at the end of their term to a lower court with undiminished salary for the remainder of their careers. Forty-nine state supreme courts have term limits or mandatory retirement ages for justices (Rhode Island is the lone exception). 

It is fair to surmise that our founders never envisioned Supreme Court terms of 30 years or more. Lifespans are much longer now than they were in the 1790s. Additionally, the average age of justices upon their confirmation has gradually decreased over the last century, so the average length of tenure has gotten much longer, from 13 years for justices appointed between 1900 and 1924 to 26 years for justices appointed between 1975 and 1999.

Additionally, term limits would address the politicization of the Court that has occurred in recent years. While there has not been an increase in cases decided by a 5-4 majority, as some commentators have claimed, public opinion about the Court has become split. As recently as 2010, roughly equal percentages of Republicans and Democrats said they had a favorable view of the Supreme Court. Today, approval among Republicans is 26 points higher than among Democrats.

If Congress enacted term limits, 18-year terms paired with regular appointments would help to depoliticize the appointment process, the exact structure proposed in a bill three Democratic representatives introduced last week. With 18-year terms, one Supreme Court justice would be nominated during each term of Congress. Each president would be responsible for two nominations, rather than our current, randomized system where one president may nominate multiple justices while another does not get to nominate any. Justices would no longer be incentivized to time their retirement to ensure an ideologically similar judge fills their seat.

Any term limit system should be phased in gradually. Current justices should be able to serve life terms, and as justices leave the Court, their seat should be filled by justices subject to an 18-year term.

The two of us come from different sides of the political aisle, but our recent work together has helped us realize the need for policies like Supreme Court term limits to reform our democratic institutions. We served on a commission with the American Academy of Arts & Sciences, which in June released a new reportOur Common Purpose, offering 31 recommendations to reinvent American democracy, including Supreme Court term limits. In conversations with Americans from across the country, our commission heard that too many people feel their votes don’t matter, that Congress will not change, and that Washington is too consumed by partisan infighting to address the needs of the public.

Supreme Court term limits alone will not fix all the problems in our democracy, but they are an important way to create a less partisan future for the highest court in the land, restoring its legitimacy as an independent arbiter of justice and shoring up public faith in our democratic institutions.

Stephen Heintz is president and CEO of the Rockefeller Brothers Fund. Pete Peterson is dean of the Pepperdine University School of Public Policy.

The report referenced in this article, and its recommendations, are online.
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Commission on the Practice of Democratic Citizenship

Danielle Allen, Stephen B. Heintz, and Eric P. Liu