Justice Stephen Breyer is now the subject of a lobbying campaign to get him to step down — a campaign being conducted by his fans. They’re responding to a peculiar feature of U.S. government: Vast swaths of public policy depend less on the outcome of elections than on a few elderly lawyers’ retirement plans and health. It’s not a situation that anyone designed, exactly, but it’s how our political system has evolved.
The screwiness of this arrangement has led to calls for term limits for Supreme Court justices. One proposal would give justices 18 years apiece on the bench, with a president making a new nomination every two years. Every president would get to pick two term-limited justices per term.
It’s a change that has been touted for years as a solution for the increasing vitriol of the Supreme Court confirmation wars. Its virtues include preserving judicial independence while making sure that the court would not reflect the political climate of several decades ago. Distinguished older judges would have a better chance of being nominated than they do today, when partisans prize longevity on the bench for their teammates.
But what’s done the most to increase interest in the idea is the conviction by those on the left that Republicans have illegitimately turned the court to the right, especially by refusing to take up President Barack Obama’s 2016 nomination of Merrick Garland. President Joe Biden responded to his party’s sentiment by appointing a commission to study structural changes to the court.
Public discussion of that commission has dwelt on whether it would push to expand the Supreme Court so that Democrats could tilt it back to the left with new appointees. But the commission is also supposed to study term limits. That idea may seem more promising than increasing the number of justices, something that Congress overwhelmingly rejected 80 years ago and that remains unpopular.
Supreme Court reform comes with a trade-off, though: The more sense a proposal makes as a long-term improvement in the structure of the federal government, the less it addresses progressives’ current unhappiness. There’s a version of term limits that adheres to the Constitution, has a little bit of political plausibility, and could lower the stakes of individual nominations. It’s just not the version that would give progressives the political victory they want.
Article III of the Constitution says that federal judges “shall hold their Offices during good Behavior.” That language would seem to preclude 18-year terms.
Advocates of term limits have found a clever way around that obstacle: They would create a new kind of federal judgeship that involved 18 years of service on the Supreme Court and additional years on lower courts. Life tenure in this hybrid judgeship would not mean life tenure on the Supreme Court.
Even if this solution works for new justices, however, it would be a stretch to try to apply it to sitting justices. They have already been confirmed — until retirement, death or impeachment — to the kind of judgeship that Supreme Court justices have now. The Constitution can’t easily be read to let Congress pass a law stripping them of their current office even to give them a new one.
Term limits that apply only to new justices would, however, frustrate the partisan ambitions behind the attempt to change the court.
Let’s say the Democratic Congress passed such a law and Justice Breyer retired. President Biden could then nominate a new term-limited justice to succeed him. But that justice would have to serve alongside eight colleagues there for life. Eventually we would have nine term-limited justices.
To get there, though, Biden would have to agree that each of his appointees have shorter-lived influence over the law than each of Trump’s. And that’s the optimistic scenario. What’s to stop a future Republican government from passing a new law letting additional vacancies be filled with old-fashioned, life-tenured justiceships?
In theory, even that problem could be overcome: Never underestimate the inventiveness of lawyers. Congress could pass a one-time expansion of the Supreme Court to enable a transition that does not punish the sitting president and his party. It could even make that expansion temporary, lasting only as long as needed to move to a fully term-limited Supreme Court. (The law could also be designed to provide for contingencies such as a justice’s death at a time inconvenient for the new staggered schedule.)
But expanding the court is, remember, unpopular. It’s not going to become more popular by getting tied to the controversial idea of term limits.
If we were starting a new political system that had two crucial features of the one we have today — a powerful high court and strong political partisanship — we might well put term limits on judges. Getting from here to there, though, seems impossible for the very reasons it may be desirable.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
To contact the editor responsible for this story:
Katy Roberts at kroberts29@bloomberg.net
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