Should the Supreme Court have term limits as opposed to lifetime appointments? A version of this idea has been floating around lately, so I decided to give it a look. Let me say upfront that I don’t actually have a very strong opinion on whether set terms for Supreme Court Justices would be better than a lifetime appointment, mostly because I haven’t thought about it for very long. But for now, I’ll try to review the idea positively.
From what I understand, the main reason for Supreme Court Justices to have a lifetime appointment is to make them less subject to political influence. The President can remove members of his cabinet at any time for any reason, which gives the President a great deal of influence over them. Other important federal positions can be removed by Congress, or at the very least maintaining a position depends on continued re-confirmation by Congress. If Supreme Court Justices could be removed from office by either the President or Congress, this could have the effect of putting members of the Supreme Court under the thumb of the President or Congress. This could inhibit their ability to issue rulings that are correct but unpopular, as well as undercut the ability of the Supreme Court to serve as a check on the other two branches.
But if this was the case, insulating Supreme Court Justices from influence from the other two branches would only require that those branches not be able to fire a Justice for voting the “wrong” way – and that doesn’t require a lifetime appointment. With the term limit system under proposal, a Justice would serve for 18 years – and during that time they would be just as protected from removal for unpopular rulings as they are currently. Once their term has completed, according to this proposal, they would be designated as “senior Justices” and continue to receive their full salary for the remainder of their life and could serve in an assisting capacity to the active justices on the Supreme Court. In instances where a sitting Justice recuses themselves from a case, one of these “senior Justices” can return to the bench to rule in their place, ensuring the case is still argued before nine justices. The same could be done in the case of an early retirement or if a sitting Justice dies – their spot could be temporarily filled by one of these senior Justices until a proper replacement is appointed. Justice terms would be timed so that each presidential administration appoints two Justices, one in the first year of the administration and the other in the third year.
A move like this wouldn’t be without some precedent, of course. The legislative branch of government has already imposed term limits on the executive branch. On the topic of executive term limits, Thomas Jefferson once said:
If some termination to the services of the chief magistrate be not fixed by the Constitution, or supplied by practice, his office, nominally for years, will in fact, become for life; and history shows how easily that degenerates into an inheritance.
In the beginning, limitations on Presidential terms were, in Jefferson’s phrasing, “supplied by practice” with most Presidents deferring to the so-called “two-term precedent” established by George Washington and Jefferson himself. Of course, this was simply a tradition, not a legal restriction, and it depended on Presidents willingly engaging in obedience to the unenforceable. After this precedent was broken by FDR, Congress moved from having this limitation “supplied by practice” and made it “fixed by the Constitution” with the 22nd Amendment.
I don’t think the odds of the Supreme Court term limit proposal actually passing are very good, but it does raise an interesting question. Let’s just imagine for a moment that it did pass. It would mean that we’d be in a situation where the legislative branch of government had imposed term limits on both the executive and judicial branches of government. This raises an obvious question – if term limits are good for the executive and judicial branches of government, might term limits also be good for the legislative branch? Such limits could only be created by the legislative branch itself. If the legislative branch put term limits on the other two branches of government, would they apply similar limitations to themselves, or ensure they continue to face no such limitations? And what are the implications of that?