UPDATED: Term Limits for the United States Supreme Court

UPDATE: In the days following IAALS' publication of this post, on December 9, Senators Joe Manchin (I-WV) and Peter Welch (D-VT) proposed a resolution that would amend the U.S. Constitution to limit Supreme Court justices to 18-year terms. More information below.

The Constitution authorizes United States Supreme Court justices to serve during “good Behaviour”; as a practical matter, this has meant life tenure, given how rare legislative impeachment and removal are. Lifetime tenure has been the source of controversy in recent years, as the Court’s decisions and the off-bench activities of some justices have sent the Court’s public standing into a tailspin.

Why Lifetime Appointments?

The Constitution provides life tenure to federal judges (today, judges of the Supreme Court, courts of appeals, and district and international trade courts). The framers did so, in Alexander Hamilton’s words, “to secure a steady, upright, and impartial administration of justice”—in other words, to ease judges’ worries that an unpopular decision could mean removal from office and to maintain their independence from partisan politics.

Critiques of Lifetime Appointments

When the framers established life terms, tenure on the Court was much briefer than it is now. Prior to the 1950s, justices spent an average of 11 to 15 years on the Court. But the average tenure of justices who have left the Court since 1970 is around 25 years. This means that there are now fewer vacancies to fill.

Lifetime appointment sets the U.S. apart from other democracies: 49 out of 50 U.S. states, and every other major democracy in the world, have term limits, elections, or mandatory retirement ages for top judges. Critics of lifetime appointments for Supreme Court justices point to the need to balance accountability with judicial independence, the greater likelihood of age-related disabilities as justices serve into their 80s, and the potential benefit of regularizing the confirmation process.

Through the Supreme Court’s history, public figures from various branches of government have called for an end to lifetime appointments on the U.S. Supreme Court. Both political parties have suggested changes to the high court in response to decisions from the bench deemed unfavorable or when administrations change. Retention elections or term limits are among several alternatives proposed.

Term Limits

Fixed, 18-year terms have become the most frequently proposed alternative to justices’ life tenure. Proponents assert that, by making it likely that presidents of both parties will be able to appoint justices, 18-year terms would better insulate the confirmation process from partisan gamesmanship and promote a more diverse court that better reflects the public view. Retired Justice Breyer has expressed support for this proposal, stating “I do think that if there were a long term—I don’t know, 18, 20 years, something like that, and it was fixed—I would say that was fine. In fact, it’d make my life a lot simpler, to tell you the truth.” Two members of IAALS’ O’Connor Advisory Committee likewise support term limits. In addition, about two-thirds of Americans support this proposed solution.

Though Supreme Court life terms have received most of the attention, some are proposing 18-year term limits for other life-tenured federal judges. Prior to his time on the Supreme Court, Chief Justice Roberts wrote that “setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges. Both developments would, in my view, be healthy ones.”

Questions Surrounding Term Limits

While one goal of term limits is to reduce Supreme Court politicization, some analysts predict “knowing which two justices will be replaced by the next president would only raise the stakes of the election and shift the attendant hyper-partisanship and acrimonious political rhetoric from “one arena—the confirmation process—to another—the permanent campaign.” In addition, there is concern that a constantly-changing court might make sudden and radical changes in doctrine (though it could be argued based on recent Supreme Court rulings that life tenure does not prevent this).

One other looming question is how to create such term limits. Advocates of term limits argue this process will not require constitutional amendment, but can be done statutorily. On the other hand, it could be argued that a constitutional amendment might provide more stability and certainty.

Moving Forward

Updated December 10, 2024: In the days following IAALS' publication of this post, on December 9, Senators Joe Manchin (I-WV) and Peter Welch (D-VT) proposed a resolution that would amend the U.S. Constitution to limit Supreme Court justices to 18-year terms.

Both senators cited declining public confidence in the Supreme Court as a reason for this resolution. "The current lifetime appointment structure is broken and fuels polarizing confirmation battles and political posturing that has eroded public confidence in the highest court in our land," said Manchin. Welch said the measure is an effort "to restore public trust in our nation's most powerful court."

The proposed amendment would maintain the lifetime appointments of sitting justices while establishing a transition period during which a new justice would be appointed every two years, regardless of when a current justice retires. The total number of justices would remain at nine.

It's difficult to predict the likelihood that this resolution, characterized by some as a "long shot," will be implemented. Significant Supreme Court reforms typically do not happen absent a crisis. Nevertheless, this proposal has broad support from the public, former federal judges, and legal scholars, signaling a growing desire for Supreme Court reform.