Confidence in the Supreme Court is at an all-time low. Illustrated by a Gallup Poll from last September, the majority of Americans (58%) disapprove of how the current Supreme Court is handling its job. Many people are upset by the lack of judicial independence. They view rulings and appointments as partisan-motivated and are disheartened by the permanence of justices they didn’t elect. To rebuild faith in the Supreme Court system, we need to abolish lifetime tenure and instead implement term limits.
There are many suggested lengths for term limits, but the most popular is to implement staggered 18-year term limits. Under this system, a new justice would be appointed every two years.
With lifetime appointments, justices have the power to influence who their successor is upon retiring. Knowing that the current president decides who to appoint, justices are more likely to plan their retirement under a favorable president. Data from the National Library of Medicine found that the odds of a justice retiring increase by 168% under an executive from the same party as the president who originally appointed the justice.
There are only two checks on the power of the Supreme Court: appointments by the president with confirmations by the Senate and impeachment by Congress. Because federal justices can help determine who the following justices are, they diminish the power of the first check—giving themselves more power. Adding term limits will strengthen the first check and reduce the power of justices.
Strategic retirement by Supreme Court justices can also lead to unfair opportunities for presidents to appoint more justices than other presidents. For example, Richard Nixon was able to appoint four justices during his five years as president, while other presidents such as Jimmy Carter were unable to appoint any. The introduction of term limits will guarantee each president the equal opportunity to appoint at least two justices per term. An equal distribution of appointments will serve to equalize the influence each president has on the court.
Term limits will also reduce the incentive to only appoint youthful justices. By choosing someone younger, presidents can make a larger impact because the justice will live to serve longer. The current average number of years served on the Supreme Court is 26—double the historical length before 1970. While adding term limits is unlikely to entirely remove age as a factor for appointment, it will increase the opportunity for older, more experienced justices to also be considered for appointment.
There are some concerns that term limits will endanger the court’s independence. Part of the reasoning behind lifetime tenure was that justices would be more removed from the public and, therefore, less inclined to bow to outside influences. However, the current Supreme Court is far from the independent court it was designed to be. For example, Justice Clarence Thomas, who has served for over 31 years, is currently being investigated for accepting sizeable gifts from the public over the last 20 years. Experts from Northeastern University believe it is unlikely Justice Thomas will be ever impeached or punished for his questionable actions.
With lifetime tenure, there is no feasible way for the justices to be held accountable for their immoral actions. Instead, justices are able to remain in power for roughly 30 years. While there is an impeachment process that takes place in Congress, only one justice has even been impeached—but was quickly acquitted. No justice has ever been prematurely removed. Having permanent positions on the court means that once a justice is appointed, they will likely remain there for decades, regardless of how well they serve. Introducing term limits will act as an independent check on the judicial branch by preventing any individual justice from staying in power for too long.
Term limits are not a novel idea. In fact, the United States is the only major democracy in the world to still use lifetime appointments in the federal judiciary. Countries like England, Australia, India, and Japan all have mandatory retirement ages installed to limit the time served on the federal court. Even in the US, 49 of the 50 states use term limits for their state Supreme Courts.
To strengthen democracy in the United States, we can start by following the lead of other global democracies and abolishing lifetime tenure in order to create a more balanced Supreme Court.
The opinions expressed in this article are those of the individual author.
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