AllStances™: Should the Supreme Court Have Term Limits?
AllStances / November 14th, 2023 / By AllSides Staff
Should we institute term limits on Supreme Court justices or maintain lifetime appointments?
Explore all perspectives, stances, and arguments for and against Supreme Court term limits with AllStances by AllSides.
Impose Supreme Court Term Limits
Term limits will ensure the confirmation process is depoliticized and the court sees a consistent turnover of perspectives.
Lifetime terms for the Supreme Court keep justices insulated from political pressure.
Background
The Supreme Court was established by the U.S. Constitution, under which justices are appointed for life. The founding fathers debated the power and the design of the Supreme Court. Federalist Alexander Hamilton viewed a strong Supreme Court with lifetime appointments as necessary to curb the harmful whims of the people.
Lifetime term limits were designed with the intention that justices could not be swayed by politics or corruption if they held secure positions until their retirement. Some argue the opposite. However, this is juxtaposed by the increasing political polarization around Supreme Court appointments. The Senate confirmed Supreme Court Justice Sotomeyer in 2009 with a vote of 68-31. In 2023, Kentaji Brown Jackson was confirmed by a vote of 53 - 47, with only two republicans voting for her confirmation.
Recent events, like Clarence Thomas’ undisclosed gifts from wealthy conservative donor Harlan Crow, have ignited calls from the left for term limits. This scandal compounded liberal and progressive resentment of the circumstances around the appointment of Kavanagh, Amy Coney Barrett, and Gorsuch to the Supreme Court. Many see term limits as a way to disempower a Supreme Court that has become increasingly controlled by partisan influences. Others see term limits as a partisan power grab that will weaken constitutional protections in the long-term.
Instead of the current process of a justice being nominated, confirmed, and appointed for life, term limits would impose a maximum number of years one can serve. Some have proposed justices be limited to 18-year terms so a new member would be nominated in each odd year, giving presidents two nominees for each four-year executive term.
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Stance 1: Impose Supreme Court Term Limits
Core argument: Term limits will ensure the confirmation process is depoliticized and the court sees a consistent turnover of perspectives.
- As justices age they become “ever more removed from the commercial and cultural vibrations of our nation.”
- Term limit reform “would ensure that no individual holds largely unchecked power for decades at a time.”
- Setting term limits would depoliticize the confirmation process.
- Term limits would usher out old judges who are experiencing mental decrepitude or loss of stamina. Limits mitigate the risk of justices serving on the court even though they may have physical or mental incapacity to interpret the constitution competently
- Under the current system, justices delay retirement or die on the bench, not wanting to leave unless they can be replaced by a president of their political party. Term limits will make the court more predictable.
- Term limits would reduce the arbitrary distribution of appointments. In most proposals, presidents would appoint an equal number of justices per term.
- Term limits might increase ethical standards because justices would not be as permanently influential.
- Justices would be more proactive because they would have a limited time to decide issues.
- Giving term limits to justices would give the court more chances to reflect the changing demographics of the country.
- Term limits are something many Americans want: 66% of Americans approve of hypothetical term limit legislation.
- Without term limits, “justices are likely to serve even longer, as the average age of retirement continues to climb while the average age of appointment keeps declining.”
- The court has a dismal 40% approval rating.
- Some Supreme court justices support term limits. Chief justice John Roberts said, “The Framers adopted life tenure at a time when people simply did not live as long as they do now. Setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality. It would provide a more regular turnover among the judges.”
Stance 2: Keep Lifetime Appointments
Core Argument: Lifetime terms for the Supreme Court keep justices insulated from political pressure.
- Lifetime appointments ensure that the judges uphold the Constitution and are immune from the politics of the day and political pressures.
- The current process means that judges are partially immune to hostile influence from other federal branches, maintaining a separation of powers.
- The slow and gradual turnover of Supreme Court justices means the court is stable and somewhat predictable.
- Lifetime appointments ensure political tranquility by keeping normality to the structure and implementation of the judicial branch.
- Older Supreme Court justices will have more experience and expertise in the Court.
- Term limits could erode the public’s perception that the Supreme Court is legitimate by associating justices more closely with the outcome of contested elections for the president.
- More recent Supreme Court justices might have more conflicting interests around new Supreme Court cases.
- Legislation that modifies the Supreme Court appointment process may be abused by one side to bias it for a particular issue.
- Term limits may inadvertently facilitate Supreme Court corruption and bias as it gives justices a financial incentive to set themselves up for their next job through their legal rulings and opinions.
- The current system makes sure popular whims do not supercede constitutional interpretation.
- “The general consensus among legal experts is that there would have to be a constitutional amendment in order to create term limits,” which is unlikely to survive the amendment process.
Glossary of Terms
Supreme Court: The highest court in the United States and the judicial branch of government where nine justices interpret and apply the constitution to various cases.
Term Limit: A limit on the amount of time an individual can be a Supreme Court justice
Lifetime Appointment: The unique term of a Supreme court justice being until they pass away or resign
Legitimacy: the belief that the Supreme court has the authority and right to serve as the highest judicial body and the trust that the justices interpret the constitution competently
Statute: a law passed by a legislative body like Congress or a state legislature that is used by the Supreme court when deciding on a case that comes before them
Judicial Review: The idea that the Supreme court can strike down any law on the grounds that it is unconstitutional
Precedent: a previous ruling that sets a standard for subsequent decisions
Judiciary Act of 1789: the act that established judicial courts in the United States, signed into law by the first U.S. president, George Washington
Marbury v. Madison (1803): this case gave the Supreme court the power of judicial review
John Roberts: the chief justice of the Supreme court since 2005
Sonia Sotomayor: Supreme court justice, nominated by Barack Obama in 2009
Elena Kagan: Supreme court justice, nominated by Barack Obama in 2010
Antonin Scalia: Served on the Supreme court from 1986 to his death in 2016, succeeded by Neil Gorsuch
Neil Gorsuch: Donald Trump’s first Supreme Court justice who replaced Justice Antonin Scalia in a divided Senate
Clarence Thomas: Supreme court justice, nominated by George Bush in 1991
Brett Kavanaugh: Donald Trump’s second Supreme court justice who replaced the retiring justice Anthony Kennedy, barely appointed with only 50 votes in the senate after sexual assault allegations.
Amy Coney Barrett: Donald Trump’s third Supreme court justice, replacing former Justice Ruth Bader Ginsburg just one month before 2020 Election Day
Merrick Garland: Barack Obama’s appointee to the Supreme court that did not get appointed since the Senate never scheduled his process of initiation
Kentaji Brown Jackson: Joe Biden’s first and only Supreme court justice whom has served on the court since 2022
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AllSides Editor-in-chief Henry A. Brechter (Center bias)
University of California-Riverside public policy students Divya Bharadwaj, Andrew Shannon, and Samuel Shroff (all Left bias)
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Content Designer Joseph Ratliff (Lean Left bias)
Director of Marketing and Bias Ratings Julie Mastrine (Lean Right bias)
