ON THE FRONT LINES: Do Supreme Court justices need term limits?
On Monday, President Joseph R. Biden Jr. is set to unveil his package for Supreme Court reform. This includes constitutional amendments addressing the recent presidential immunity ruling from "Trump v. United States" and a stronger code of ethics for justices on the bench. One of the more controversial measures that Biden may propose is to impose term limits for justices on the bench.
This is not the first time Biden has considered Supreme Court reform. In December 2021, the Presidential Commission on the Supreme Court of the U.S., established by Biden, released a report detailing its thoughts on potential reforms, including term limits and expanding the court.
While this report may not have had any immediate policy impact, it does indicate that the Biden administration has always considered Supreme Court term limits.
Despite this, it is unlikely that term limits will be imposed on the Supreme Court. Article III, the part of the U.S. Constitution establishing the Supreme Court, states, "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior." This is the only rule that binds justices. Any change to this clause would require a constitutional amendment.
Some might disagree with this view of Article III, but the founding fathers intended for Supreme Court justices not to be term-limited. In Federalist No. 78, Alexander Hamilton outlines his reasoning for a non-term-limited Supreme Court system, indicating that this was a consideration at the time of the Constitution's drafting.
The amendment process is extremely difficult because a supermajority in either Congress or the state legislatures is needed to propose an amendment, along with 75 percent of states agreeing to ratification. This process is even more difficult given the hyper-political polarization plaguing the U.S.
Even ignoring the structural barriers to imposing Supreme Court term limits, the idea would not solve the issues impacting this institution.
Proponents of term limits state this is a way to depoliticize the court. Under most proposals, we would see a staggered 18-year term limit, allowing the president to appoint two justices per term.
But this does not address the fact that these nominations still need a Senate confirmation. This creates greater possibilities for more friction between the executive and legislative branches.
This is not something new. For example, when former Justice Antonin Scalia died in 2016, then-President Barack Obama selected Merrick Garland as his nominee. But Senate Republicans blocked his confirmation hearing, hoping then-candidate Donald Trump could win the election and appoint someone more conservative. They got their wish, and Justice Neil Gorsuch filled the seat.
Even more concerning is that many Senate Republicans would have left Scalia's seat open had Hillary Clinton won, opting to have an incomplete Supreme Court rather than have a Democrat-appointed justice. With the term limit proposal, are we willing to have this kind of situation become more common?
Proponents may suggest that the workaround would be having interim justices confirmed by the Senate to fill in when there are empty spots on the Supreme Court. But this does not address the root cause of the problem since it still requires the Senate to confirm a new justice. Who is to say that would not become a political problem?
The result is a more politicized Supreme Court and a more fragmented, incomplete court.
The other benefit raised by proponents is that imposing term limits would create a more balanced court. They cite the current conservative supermajority as an example of how the current court has shifted out of balance.
But this raises some issues. If a president can be elected for two terms, they would be able to appoint four justices, and if another justice left the court, that president could create a Supreme Court majority. Given the ease, a situation could arise in which the Supreme Court majority ping-pongs between parties.
While this may seem like a good balance, it can cause problems with the court's functioning.
One example would be in the consistency of decisions. If the Supreme Court has a changing majority and the power to decide which cases it wants to hear, substantial changes could happen every four to eight years. Policies on matters like abortion, climate change and government power could change rapidly.
This is especially unstable, as the U.S. utilizes a common law system where precedent determines the body of law.
Adding more influence from the political branches of the U.S. could also hurt the Supreme Court's power of interpretation. The Supreme Court has been so isolated from public pressure to ensure its interpretation will not be tainted by public pressures.
This especially matters when the Supreme Court rules in a way that counters public opinion. One example of this comes from the 1967 case "Loving v. Virginia," where the Supreme Court ruled that interracial marriages have to be treated as equal to intraracial marriages. One year after the ruling, only 20 percent of the American public supported interracial marriages.
Adding in more political influence takes away power from justices, who better understand the law, in favor of a public who tends to view the law more politically and politicians who want to grab votes.
The current state of the Supreme Court is not looking good. With Supreme Court approval hitting new lows, it is understandable that people view it as an institution needing reform. But term limits on justices would not address the main issues plaguing the court.
Rather than focusing on term limits, the more effective solution would be the stronger code of ethics that Biden is planning on proposing, along with using existing mechanisms like impeachment to remove justices that are not acting in good behavior, as Rep. Alexandria Ocasio-Cortez (D-N.Y.) has done.
Kiran Subramanian is a School of Arts and Sciences senior majoring in economics and political science.
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