Staggered 18-year terms would bring regular turnover to the bench. The result would be a Court that better reflects prevailing public values.
Published: June 20, 2023
Today’s Supreme Court has assumed a degree of power and importance that would have been unrecognizable in the founding era. footnote1_opJTnT2bXXyN 1 Professor Jamal Greene captured this development succinctly in testimony to the Presidential Commission on the Supreme Court: “A starkly different political and legal landscape in a nation of 330 million has the potential to turn on the views of a single person. That single person is unelected, is one of only nine, can be confirmed by a bare and strictly partisan majority of the U.S. Senate, plays a major role in deciding what cases they hear, can potentially remain in office for 40 or 50 years, and can, in effect, choose the ideology of their replacement, who may in turn hold office for another 40 or 50 years under like conditions. In constitutional cases, the decisions the Court reaches are effectively unreviewable except by the Court itself, amendment of the federal Constitution having become effectively defunct. . . . The Founders did not gift us this constellation of features.” Presidential Commission on the Supreme Court of the United States, Closing Reflections on the Supreme Court and Constitutional Governance, July 20, 2021 (statement of Jamal Greene, Dwight Professor of Law, Columbia Law School), 6, https://www.whitehouse.gov/wp-content/uploads/2021/07/Greene-Testimony.pdf. A recent cascade of ethics scandals has laid bare a system in which justices wield tremendous power for decades with little accountability, footnote2_cKCxqZtKk2gy 2 Joshua Kaplan, Justin Elliott, and Alex Mierjeski, “Clarence Thomas Had a Child in Private School. Harlan Crow Paid the Tuition,” ProPublica, May 4, 2023, https://www.propublica.org/article/clarence-thomas-harlan-crow-private-school-tuition-scotus; Emma Brown, Shawn Boburg, and Jonathan O’Connell, “Judicial Activist Directed Fees to Clarence Thomas’s Wife, Urged ‘No Mention of Ginni,’” Washington Post, May 4, 2023, https://www.washingtonpost.com/investigations/2023/05/04/leonard-leo-clarence-ginni-thomas-conway/; Mattathias Schwartz, “Jane Roberts, Who Is Married to Chief Justice John Roberts, Made $10.3 Million in Commissions from Elite Law Firms, Whistleblower Documents Show,” Forbes, April 28, 2023, https://www.businessinsider.com/jane-roberts-chief-justice-wife-10-million-commissions-2023–4; Charlie Savage, “Head of a Major Law Firm Bought Real Estate From Gorsuch,” New York Times, April 25, 2023, https://www.nytimes.com/2023/04/25/us/neil-gorsuch-property-sale.html; Joshua Kaplan, Justin Elliott, and Alex Mierjeski, “Clarence Thomas and the Billionaire,” ProPublica, April 6, 2023, https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow; Jodi Kantor and Jo Becker, “Former Anti-Abortion Leader Alleges Another Supreme Court Breach,” New York Times, November 19, 2022, https://www.nytimes.com/2022/11/19/us/supreme-court-leak-abortion-roe-wade.html; and Adam Liptak, “Justice Thomas Ruled on Election Cases. Should His Wife’s Texts Have Stopped Him?,” New York Times, March 25, 2022, https://www.nytimes.com/2022/03/25/us/supreme-court-clarence-thomas-recusal.html. while the Court’s rulings are increasingly unmoored from democratic values and the principle of judicial restraint. footnote3_nF4803QBHSbG 3 Stephen Jessee, Neil Malhotra, and Maya Sen, “A Decade-Long Longitudinal Survey Shows That the Supreme Court Is Now Much More Conservative Than the Public,” Proceedings of the National Academy of Sciences 119, no. 24 (June 6, 2022), https://www.pnas.org/doi/10.1073/pnas.2120284119; and Mark A. Lemley, “The Imperial Supreme Court,” Harvard Law Review 136, no. 1 (November 2022): 97–118, https://harvardlawreview.org/2022/11/the-imperial-supreme-court/. At the same time, polarization among the political parties and the justices themselves has dramatically increased the partisan stakes of the confirmation process, leading to a broken system. footnote4_xdXZAhHCYDol 4 Alan I. Abramowitz and Steven Webster, “The Rise of Negative Partisanship and the Nationalization of U.S. Elections in the 21st Century,” Electoral Studies 41 (2016): 12, https://www.sciencedirect.com/science/article/abs/pii/S0261379415001857; Neal Devins and Lawrence Baum, “Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court,” Supreme Court Review 2016 (January 30, 2017): 301–65, https://doi.org/10.1086/691096; and Amelia Thomson-DeVeaux and Laura Bronner, “The Supreme Court Divide Hasn’t Been This Sharp in Generations,” FiveThirtyEight, July 5, 2022, https://fivethirtyeight.com/features/the-supreme-courts-partisan-divide-hasnt-been-this-sharp-in-generations/. Public trust in the Court is at a historical low. footnote5_djahiB4va68N 5 Jeffrey M. Jones, “Supreme Court Trust, Job Approval at Historical Lows,” Gallup, October 6, 2022, https://news.gallup.com/poll/402044/supreme-court-trust-job-approval-historical-lows.aspx.
For all these reasons, there are growing calls for reform. Proposals range from creating an ethics code to expanding the Court to stripping its jurisdiction. One of the most popular options would also be among the most transformative: establishing 18-year terms and regularized appointments for justices. Under this system, justices would sit in staggered terms of active service on the Court, such that a new vacancy would open every two years. Each president would have two, and only two, appointments during a four-year term.
This paper explains how such a reform would work, why it would bolster the Court’s legitimacy, and how to transition from the current system. It also discusses how the core elements of this reform could be adopted by statute, consistent with the Constitution, by establishing the role of “senior justice.” Among other things, senior justices would hear cases by designation on the lower courts, step in to hear cases on the Supreme Court in the event of a recusal or unexpected vacancy, and assist with the management and administration of the federal courts. This framework is similar to the existing system of senior judges that has been in place for more than a century and has applied to the justices since 1937. footnote6_ybHCRscmOVkk 6 Marin K. Levy, “The Promise of Senior Judges,” Northwestern University Law Review 115, no. 4 (January 17, 2021): 1240–42, https://scholarlycommons.law.northwestern.edu/nulr/vol115/iss4/5/. However, rather than leave the timing of senior status up to the justices’ discretion, under this reform Congress would create a schedule by which justices assume senior status automatically after 18 years of active service on the Court.
The case for reform is compelling. On average, justices today sit on the bench for more than a decade longer than their predecessors did as recently as the 1960s. footnote7_uVSL3rtM4sZx 7 Steven G. Calabresi and James Lindgren, “Term Limits for the Supreme Court: Life Tenure Reconsidered,” Harvard Journal of Law and Public Policy 29, no. 3 (May 2006): 771, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=701121. Post-2006 calculations on file with the Brennan Center. Several justices now on the Court are likely to hold office over as many as nine presidential terms. Unbounded tenure allows a single justice to shape the direction of the law for generations, without regard for the evolving views and composition of the electorate. It puts justices in an elite and unaccountable bubble for decades. No other major democracy in the world provides life tenure for high court judges who hear constitutional cases. footnote8_wcIKtQc5BjAJ 8 Calabresi and Lindgren, “Term Limits,” 819; Presidential Commission, Closing Reflections (statement, Greene), 23; and Presidential Commission on the Supreme Court of the United States, Term Limits and Turnover on the U.S. Supreme Court: A Comparative View, July 20, 2021 (written testimony of Tom Ginsburg, Leo Spitz Professor of Law, University of Chicago Law School, and research fellow, American Bar Foundation), 3, https://www.whitehouse.gov/wp-content/uploads/2021/07/Ginsburg-Testimony.pdf.
With today’s intense ideological polarization, every Supreme Court vacancy also takes on monumental stakes. Exercises of raw power have replaced long-established constitutional norms, upending the confirmation process. footnote9_tBi1dyhwwdXG 9 Michael J. Gerhardt and Richard W. Painter, “Majority Rule and the Future of Judicial Selection,” Wisconsin Law Review 2017, no. 2 (May 2017): 270–75, https://wlr.law.wisc.edu/wp-content/uploads/sites/1263/2017/05/Gerhardt-Painter-Final.pdf. This constitutional hardball footnote10_gShQscAR3H40 10 Joseph Fishkin and David E. Pozen, “Asymmetric Constitutional Hardball,” Columbia Law Review 118 (2018): 921, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3126344. was illustrated most notoriously when Republican senators refused to consider President Barack Obama’s March 2016 nomination of Merrick Garland, claiming that it was too close to the presidential election, only to rush through a vote for Amy Coney Barrett in October 2020, when early voting in that year’s presidential election had already started.
One result of these dynamics has been that presidents have had starkly disparate imprints on the Court. President Donald Trump appointed three justices in four years, whereas Presidents Bill Clinton, George W. Bush, and Barack Obama each appointed two justices in eight years. This wide variation, as well as its impact on the development of American law, is impossible to square with principles of democratic legitimacy.
By contrast, with 18-year active terms and regularized appointments, every president would have an equal imprint on the Court during a four-year term. Such a system would enhance the democratic link between the Court and the public, making the institution more reflective of changing public values while preserving judicial independence.
This reform would also encourage a better-functioning and less politically charged confirmation process. Shorter terms would lower the stakes of each nomination, while regularized appointments would both encourage compromise and allow for public accountability in the event of confirmation impasses. Regularized appointments would also eliminate the destabilizing impact of late-term vacancies because an unexpected death or retirement would not create a new seat to fill; instead, a senior justice would temporarily step in. And this reform would ensure that no individual holds largely unchecked power for decades at a time.
Broad swaths of Americans support term limits for justices. Since 2022, several polls have found that more than two-thirds of the public are in favor of this reform, including more than three-quarters of Democrats, two-thirds of independents, and more than half of Republicans. This bipartisan support is long-standing: since at least 2014, polls have consistently shown supermajority support for term limits (see appendix).
A broad array of scholars likewise support term limits. When the National Constitution Center convened separate groups of conservative and progressive scholars in 2020 to draft their ideal constitutions, both proposed 18-year terms. footnote11_vtoFZKV9uCJ2 11 Caroline Fredrickson, Jamal Greene, and Melissa Murray, The Progressive Constitution, National Constitution Center, accessed March 7, 2023, https://constitutioncenter.org/news-debate/special-projects/constitution-drafting-project/the-progressive-constitution; and Robert P. George et al., The Conservative Constitution, National Constitution Center, accessed March 7, 2023, https://constitutioncenter.org/news-debate/special-projects/constitution-drafting-project/the-conservative-constitution. Comparative constitutional law scholars have reached the same conclusion, acknowledging that “were we writing the United States Constitution anew, there is no way we would adopt the particular institutional structure that we have for judicial tenure. No other country has true lifetime tenure for its justices, and for good reason.” Presidential Commission, Term Limits and Turnover (written testimony, Ginsburg), 2. The Presidential Commission on the Supreme Court, which was created by President Joe Biden to evaluate options for Supreme Court reform, described term limits as enjoying “considerable, bipartisan support.” footnote12_b65CI34MAZ3W 12 Presidential Commission on the Supreme Court of the United States, Final Report, December 2021, 111, https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21–1.pdf.
The Constitution gives Congress wide latitude to determine the Supreme Court’s structure and responsibilities. Congress should use its power now to reform the Supreme Court.
Professor Jamal Greene captured this development succinctly in testimony to the Presidential Commission on the Supreme Court: “A starkly different political and legal landscape in a nation of 330 million has the potential to turn on the views of a single person. That single person is unelected, is one of only nine, can be confirmed by a bare and strictly partisan majority of the U.S. Senate, plays a major role in deciding what cases they hear, can potentially remain in office for 40 or 50 years, and can, in effect, choose the ideology of their replacement, who may in turn hold office for another 40 or 50 years under like conditions. In constitutional cases, the decisions the Court reaches are effectively unreviewable except by the Court itself, amendment of the federal Constitution having become effectively defunct. . . . The Founders did not gift us this constellation of features.” Presidential Commission on the Supreme Court of the United States, Closing Reflections on the Supreme Court and Constitutional Governance, July 20, 2021 (statement of Jamal Greene, Dwight Professor of Law, Columbia Law School), 6, https://www.whitehouse.gov/wp-content/uploads/2021/07/Greene-Testimony.pdf.
Joshua Kaplan, Justin Elliott, and Alex Mierjeski, “Clarence Thomas Had a Child in Private School. Harlan Crow Paid the Tuition,” ProPublica, May 4, 2023, https://www.propublica.org/article/clarence-thomas-harlan-crow-private-school-tuition-scotus; Emma Brown, Shawn Boburg, and Jonathan O’Connell, “Judicial Activist Directed Fees to Clarence Thomas’s Wife, Urged ‘No Mention of Ginni,’” Washington Post, May 4, 2023, https://www.washingtonpost.com/investigations/2023/05/04/leonard-leo-clarence-ginni-thomas-conway/; Mattathias Schwartz, “Jane Roberts, Who Is Married to Chief Justice John Roberts, Made $10.3 Million in Commissions from Elite Law Firms, Whistleblower Documents Show,” Forbes, April 28, 2023, https://www.businessinsider.com/jane-roberts-chief-justice-wife-10-million-commissions-2023–4; Charlie Savage, “Head of a Major Law Firm Bought Real Estate From Gorsuch,” New York Times, April 25, 2023, https://www.nytimes.com/2023/04/25/us/neil-gorsuch-property-sale.html; Joshua Kaplan, Justin Elliott, and Alex Mierjeski, “Clarence Thomas and the Billionaire,” ProPublica, April 6, 2023, https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow; Jodi Kantor and Jo Becker, “Former Anti-Abortion Leader Alleges Another Supreme Court Breach,” New York Times, November 19, 2022, https://www.nytimes.com/2022/11/19/us/supreme-court-leak-abortion-roe-wade.html; and Adam Liptak, “Justice Thomas Ruled on Election Cases. Should His Wife’s Texts Have Stopped Him?,” New York Times, March 25, 2022, https://www.nytimes.com/2022/03/25/us/supreme-court-clarence-thomas-recusal.html.
Stephen Jessee, Neil Malhotra, and Maya Sen, “A Decade-Long Longitudinal Survey Shows That the Supreme Court Is Now Much More Conservative Than the Public,” Proceedings of the National Academy of Sciences 119, no. 24 (June 6, 2022), https://www.pnas.org/doi/10.1073/pnas.2120284119; and Mark A. Lemley, “The Imperial Supreme Court,” Harvard Law Review 136, no. 1 (November 2022): 97–118, https://harvardlawreview.org/2022/11/the-imperial-supreme-court/.
Alan I. Abramowitz and Steven Webster, “The Rise of Negative Partisanship and the Nationalization of U.S. Elections in the 21st Century,” Electoral Studies 41 (2016): 12, https://www.sciencedirect.com/science/article/abs/pii/S0261379415001857; Neal Devins and Lawrence Baum, “Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court,” Supreme Court Review 2016 (January 30, 2017): 301–65, https://doi.org/10.1086/691096; and Amelia Thomson-DeVeaux and Laura Bronner, “The Supreme Court Divide Hasn’t Been This Sharp in Generations,” FiveThirtyEight, July 5, 2022, https://fivethirtyeight.com/features/the-supreme-courts-partisan-divide-hasnt-been-this-sharp-in-generations/.
Marin K. Levy, “The Promise of Senior Judges,” Northwestern University Law Review 115, no. 4 (January 17, 2021): 1240–42, https://scholarlycommons.law.northwestern.edu/nulr/vol115/iss4/5/.
Steven G. Calabresi and James Lindgren, “Term Limits for the Supreme Court: Life Tenure Reconsidered,” Harvard Journal of Law and Public Policy 29, no. 3 (May 2006): 771,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=701121. Post-2006 calculations on file with the Brennan Center.
Calabresi and Lindgren, “Term Limits,” 819; Presidential Commission, Closing Reflections (statement, Greene), 23; and Presidential Commission on the Supreme Court of the United States, Term Limits and Turnover on the U.S. Supreme Court: A Comparative View, July 20, 2021 (written testimony of Tom Ginsburg, Leo Spitz Professor of Law, University of Chicago Law School, and research fellow, American Bar Foundation), 3, https://www.whitehouse.gov/wp-content/uploads/2021/07/Ginsburg-Testimony.pdf.
Michael J. Gerhardt and Richard W. Painter, “Majority Rule and the Future of Judicial Selection,” Wisconsin Law Review 2017, no. 2 (May 2017): 270–75, https://wlr.law.wisc.edu/wp-content/uploads/sites/1263/2017/05/Gerhardt-Painter-Final.pdf.
Joseph Fishkin and David E. Pozen, “Asymmetric Constitutional Hardball,” Columbia Law Review 118 (2018): 921, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3126344.
Caroline Fredrickson, Jamal Greene, and Melissa Murray, The Progressive Constitution, National Constitution Center, accessed March 7, 2023, https://constitutioncenter.org/news-debate/special-projects/constitution-drafting-project/the-progressive-constitution; and Robert P. George et al., The Conservative Constitution, National Constitution Center, accessed March 7, 2023, https://constitutioncenter.org/news-debate/special-projects/constitution-drafting-project/the-conservative-constitution. Comparative constitutional law scholars have reached the same conclusion, acknowledging that “were we writing the United States Constitution anew, there is no way we would adopt the particular institutional structure that we have for judicial tenure. No other country has true lifetime tenure for its justices, and for good reason.” Presidential Commission, Term Limits and Turnover (written testimony, Ginsburg), 2.
Presidential Commission on the Supreme Court of the United States, Final Report, December 2021, 111, https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21–1.pdf.
In Federalist 78, Alexander Hamilton famously described the Supreme Court as the “least dangerous branch” of government. footnote1_kIp6kwZIPS1F 1 Alexander Hamilton, Federalist No. 78, National Archives: Founders Online, May 28, 1788, https://founders.archives.gov/documents/Hamilton/01–04–02–0241#ARHN-01–04–02–0241-fn-0001. At the time, it was an accurate description. In its first decade, the Supreme Court heard an average of just six cases per year. footnote2_vywObDo6bQJA 2 William Rehnquist, “Remarks of the Chief Justice,” lecture, My Life in the Law series, Duke University School of Law, April 13, 2002, https://www.supremecourt.gov/publicinfo/speeches/viewspeech/sp_04–13–02. The first chief justice, John Jay, stayed on the bench for only five years and declined to be renominated after serving as governor of New York because, he said, the Court lacked “energy, weight, and dignity.” footnote3_rDysv52VAq80 3 Gregory S. Fisher, “Reining In Those Pesky Federal Judges: Re-examining the Purpose and Premise of Life Tenure — A Perspective,” Federal Lawyer 53, no. 1 (January 2006): 31. In 1803, Chief Justice John Marshall asserted the power of judicial review in Marbury v. Madison. Yet the Supreme Court did not strike down another federal law as unconstitutional for more than 50 years, when, in Dred Scott v. Sandford, it notoriously barred Congress from freeing slaves within federal territories. footnote4_reLeeTyuzpwG 4 Frederick A. O. Schwarz Jr., “Saving the Supreme Court,” Democracy, no. 54 (Fall 2019), https://democracyjournal.org/magazine/54/saving-the-supreme-court.
But times have changed. As the size, scope, and power of the federal government expanded, first with the post–Civil War Reconstruction Amendments and then again in the 20th century with the rise of the administrative state and the civil rights movement, so too did the Supreme Court’s power and national importance. footnote5_pr0OgofJHUhj 5 Presidential Commission, Closing Reflections (statement, Greene), 3–4; and Schwarz, “Saving the Supreme Court.” This has altered the incentives of justices to stay in office and the incentives of presidents and senators in the confirmation process. And it has encouraged the political branches to cast aside governing norms to secure seats on the Court — particularly as both the Court and the political parties have grown increasingly polarized. footnote6_bGtC1fOxgWiH 6 Lee Epstein and Eric Posner, “If the Supreme Court Is Nakedly Political, Can It Be Just?,” New York Times, July 9, 2018, https://www.nytimes.com/2018/07/09/opinion/supreme-court-nominee-trump.html. Together these trends have led to a dysfunctional system.
Modern justices are serving unusually long terms. footnote7_lcDGLeQEOmPN 7 See Tyler Cooper et al., “Retiring Life Tenure: On Term Limits and Regular Appointments at the Supreme Court,” Cardozo Law Review 42 (2021): 2766, https://cardozolawreview.com/retiring-life-tenure-on-term-limits-and-regular-appointments-at-the-supreme-court. For the first 180 years of U.S. history, justices served an average of approximately 15 years. But in the 1970s, the average tenure began to balloon. In recent years, justices have served an average of 26 years — equivalent to six and a half presidential terms. footnote8_lSvQnYYvfEEo 8 Calabresi and Lindgren, “Term Limits,” 771; and David Ingold, Cedric Sam, and Mira Rojanasakul, “Biden Nominee Jackson Could Serve for Decades with a Conservative Supreme Court Majority,” Bloomberg, January 28, 2022, https://www.bloomberg.com/graphics/2022-supreme-court-justice-stephen-breyer-retirement/#xj4y7vzkg. Justices appointed at around the age of 50 — which includes a supermajority of justices on the Court today — could serve as long as 35 years. footnote9_vRdpkmLTRZ7G 9 These justices include Barrett, Gorsuch, Kagan, Jackson, Roberts, and Thomas. Since 1972 there has been only one justice who was older than 55 when appointed to the Court. Presidential Commission on the Supreme Court, Perspectives from Supreme Court Practitioners and Views on the Confirmation Process, July 20, 2021 (written testimony of Ilya Shapiro, vice president, Cato Institute), 7, https://www.whitehouse.gov/wp-content/uploads/2021/07/Shapiro-Testimony.pdf. In the future, justices are likely to serve even longer, as the average age of retirement continues to climb while the average age of appointment keeps declining. footnote10_mKwfZ8JQs7RI 10 See Ingold, Sam, and Rojanasakul, “Biden Nominee Jackson”; Calabresi and Lindgren, “Term Limits,” 800–801; and Kristin Bialik and John Gramlich, “Younger Supreme Court Appointees Stay on the Bench Longer, but There Are Plenty of Exceptions,” Pew Research Center, February 8, 2017, https://www.pewresearch.org/fact-tank/2017/02/08/younger-supreme-court-appointees-stay-on-the-bench-longer-but-there-are-plenty-of-exceptions/.
These lengthening terms mean justices leave a substantially greater imprint on the Court and the country than did their predecessors. At the same time, the elected branches — and the people they represent — have far fewer opportunities to shape the Court’s direction. footnote11_r88Ix5hYp5dO 11 Adam Chilton et al., “Designing Supreme Court Term Limits,” Southern California Law Review 95, no. 1 (May 2022): 10–11, https://southerncalifornialawreview.com/wp-content/uploads/2022/05/Epps_Final-Color.pdf. Today a 30-year-old has seen only 10 new justices join the Court; 60 years ago, a person of the same age would have seen twice as many. footnote12_qfPOJiIO6Dkn 12 Supreme Court of the United States, “Justices 1798 to Present,” accessed March 7, 2023, https://www.supremecourt.gov/about/members_text.aspx.
Generational seats also leave individual justices with too much power for too long, giving nine people control over an entire branch of government for decades. This is especially concerning because justices, by design, enjoy a rarefied and largely unaccountable position. As Chief Justice John Roberts once acknowledged while working as a White House attorney, “The Framers adopted life tenure at a time when people simply did not live as long as they do now. A judge insulated from the normal currents of life for twenty-five or thirty years was a rarity then, but is becoming commonplace today.” footnote13_vwMurDBpZdrG 13 John G. Roberts (associate counsel to President Reagan) to Fred F. Fielding (White House counsel), Re: DOJ Proposed Report on S.J. 93, October 3, 1983, https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1110&context=historical. The trend toward lengthening terms also heightens the risk that justices will stay on the Court after their capacity as jurists begins to decline. footnote14_pPurBc3s7mj2 14 As former circuit court judge Michael McConnell stated in testimony to the Presidential Commission on the Supreme Court, “Eighteen years of service on the highest court in the land is enough for any human being. Age, infirmity, and close-mindedness tend to take their toll.” Presidential Commission on the Supreme Court of the United States, The Contemporary Debate over Supreme Court Reform: Origins and Perspectives, June 30, 2021 (written testimony of Michael McConnell), https://www.whitehouse.gov/wp-content/uploads/2021/06/McConnell-SCOTUS-Commission-Testimony.pdf. Numerous studies have shown the effects of normal aging on cognition and reasoning, and “even the maintained ability of crystallized knowledge has been shown to decline steadily after about age 70 or 75.” Alan S. Kaufman, “The Precipitous Decline in Reasoning and Other Key Abilities with Age and Its Implications for Federal Judges,” Journal of Intelligence 9, no. 4 (October 25, 2021), https://doi.org/10.3390/jintelligence9040052. According to one study, since the 20th century at least 11 justices on the Court suffered “a serious mental decline” during their final years of service. David R. Stras and Ryan W. Scott, “Retaining Life Tenure: The Case for a ‘Golden Parachute,’ ” Washington University Law Quarterly 83, no. 5 (2005): 1437, https://www.repository.law.indiana.edu/facpub/394. See also David J. Garrow, “Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment,” Chicago Law Review 67, no. 4 (2000): 995–1086, https://chicagounbound.uchicago.edu/uclrev/vol67/iss4/2/; and Joseph Goldstein, “Life Tenure for Federal Judges Raises Issues of Senility, Dementia,” ProPublica, January 18, 2011, https://www.propublica.org/article/life-tenure-for-federal-judges-raises-issues-of-senility-dementia.
Justices routinely time their retirements to create vacancies for ideologically aligned presidents to fill. These so-called strategic retirements enable justices to lock in their jurisprudence on the Court for multiple generations — a practice inconsistent with the principle that it is the values of the public, not of individual justices, that should shape the future direction of the law. footnote15_yGLemGmeaM6m 15 Schwarz, “Saving the Supreme Court.” Strategic retirements also reinforce the view that justices are simply extensions of the political parties that appointed them. As former federal judge Michael McConnell observed in testimony before the Presidential Commission on the Supreme Court, the current system “puts unseemly pressure on sitting justices to time their retirement to permit a president of their political party to name the replacement.” footnote16_aJCbWtZ2zDcK 16 Presidential Commission, Contemporary Debate (written testimony, McConnell), 3. The practice also opens the door to inappropriate horse trading between justices and the presidents who would fill their seats. footnote17_vcNHUml9lsMQ 17 “The reason we do not allow the Justices to pick their own successors is precisely because we believe that the judiciary, just like the legislature and the executive, needs to be subject to popular control and to the system of checks and balances.” Calabresi and Lindgren, “Term Limits,” 812. Prior to announcing his retirement, for example, Justice Anthony Kennedy reportedly lobbied President Trump to include then judge Brett Kavanaugh’s name on his list of potential Supreme Court nominees. footnote18_r79IHOUWBtiy 18 Ruth Marcus, Supreme Ambition: Brett Kavanaugh and the Conservative Takeover of the Supreme Court (New York: Simon & Schuster, 2019), 2–3, 50–51; and Christopher Cadelago, Nancy Cook, and Andrew Restuccia, “How a Private Meeting with Kennedy Helped Trump Get to ‘Yes’ on Kavanaugh,” Politico, July 9, 2018, https://www.politico.com/story/2018/07/09/brett-kavanaugh-trump-private-meeting-706137.
Strategic retirements have become the norm since the 1960s. footnote19_ltQAreOFi103 19 Scott Lemieux, “When Do Supreme Court Justices Retire? When the Politics Are Right,” Washington Post, August 28, 2019, https://perma.cc/JJL5-XYCV. The last time a justice retired when a vacancy would likely result in the appointment of a justice with an opposing ideology was more than 30 years ago, when Justice Thurgood Marshall stepped down due to declining health. footnote20_u5vHbM3eF0xi 20 C-SPAN, “Retirement of Justice Marshall,” June 28, 1991, https://www.c-span.org/video/?18624–1/retirement-justice-marshall. President George H. W. Bush appointed Justice Clarence Thomas to replace him.
Due in large part to lengthening terms and strategic retirements, the Supreme Court confirmation process has become highly dysfunctional. Nominees are increasingly confirmed on near party-line votes regardless of their underlying merit or commitment to values such as equal justice. footnote21_x5nrKKd1pVoy 21 David Lauter, “Essential Politics: Supreme Court Nomination Hearings — Long Awful — Have Gotten Worse. Here’s Why,” Los Angeles Times, March 25, 2022, https://www.latimes.com/politics/newsletter/2022–03–25/ketanji-brown-jackson-hearings-essential-politics. In 1994 Justice Stephen Breyer received 87 votes during his confirmation, including 79 percent of those cast by Republicans. This was consistent with the experience of approximately three-quarters of all Supreme Court nominees up to that point (including those confirmed by voice vote). Since then, no nominee has had this level of support. Geoffrey Skelley, “It’s Harder Than Ever to Confirm a Supreme Court Justice,” FiveThirtyEight, February 2, 2022, https://fivethirtyeight.com/features/its-harder-than-ever-to-confirm-a-supreme-court-justice/. Chief Justice Roberts is the only sitting justice to have received the support of a majority of senators not in the nominating president’s political party. footnote22_llUoZJV4Vyer 22 The four justices most recently appointed to the Court were confirmed with bare majorities of no more than 54 votes: Justice Gorsuch received 54 votes, Justice Kavanaugh 50 votes, Justice Barrett 52, and Justice Jackson 53. United States Senate, “Supreme Court Nominations (1789–Present),” accessed March 23, 2023, https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm. The confirmation process has likewise become awash in dark money, footnote23_d5yPsThg023E 23 Sen. Sheldon D. Whitehouse with Jennifer Mueller, The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court (New York: The New Press, 2023); Brennan Center for Justice, “Follow the Money: Tracking TV Spending on the Kavanaugh Nomination,” July 26, 2018, https://www.brennancenter.org/our-work/research-reports/follow-money-tracking-tv-spending-kavanaugh-nomination; Douglas Keith, “What We Know About the Money Behind Brett Kavanaugh’s Confirmation Fight,” HuffPost, September 3, 2018, https://www.opensecrets.org/news/2020/01/supreme-court-wellspring-committee-stry-2020/; Madison Alder, “GOP Dark Money Criticisms in Supreme Court Fight Mirror Democrats,” Bloomberg Law, March 18, 2022, https://news.bloomberglaw.com/us-law-week/gop-dark-money-criticisms-in-supreme-court-fight-mirror-democrats-1; and Lachlan Markay, “Progressives Prep Big Spending for SCOTUS Confirmation,” Axios, March 6, 2022, https://www.axios.com/2022/03/06/progressives-scotus-confirmation-spending. which creates risks of conflicts of interest and contributes to an appearance of politicization. footnote24_xVFUMK7HICCa 24 Alicia Bannon, “The Rise of Dark Money Is a Threat to Judicial Independence,” Brennan Center for Justice, July 6, 2018, https://www.brennancenter.org/our-work/analysis-opinion/rise-dark-money-threat-judicial-independence.
The long-standing Senate norm of granting every nominee a hearing and a vote as part of the Senate’s constitutional responsibility to provide advice and consent on judicial appointments has been replaced with exercises in raw power. footnote25_ppqpoJnq0mhs 25 Gerhardt and Painter, “Majority Rule and the Future of Judicial Selection,” 270–75; Daniel Epps and Ganesh Sitaraman, “How to Save the Supreme Court,” Yale Law Journal 129, no. 1 (October 2019): 169, https://www.yalelawjournal.org/feature/how-to-save-the-supreme-court; Steven Calabresi, “End the Poisonous Process of Picking Supreme Court Justices,” New York Times, September 22, 2020, https://www.nytimes.com/2020/09/22/opinion/ginsburg-supreme-court-confirmation.html; and Bob Bauer, “Six Ways to Fix the Supreme Court Confirmation Process,” Atlantic, October 16, 2018, https://www.theatlantic.com/ideas/archive/2018/10/how-fix-confirmation-process/573085/. These dynamics were on full display during the confirmation battles over the Supreme Court seats vacated by Justices Antonin Scalia and Ruth Bader Ginsburg, who both died unexpectedly during a presidential election year. By refusing to give Merrick Garland a hearing or a vote in 2016, the Republican Senate majority broke a norm of more than 100 years to evaluate every Supreme Court nominee’s fitness for the office. footnote26_alzmPgUL9VRy 26 Gerhardt and Painter, “Majority Rule and the Future of Judicial Selection,” 271. (Prior to this incident, the last time the Senate refused to take action on a Supreme Court nominee during a legislative session was shortly after the Civil War.) footnote27_s5fuMhBEVS69 27 Eric T. Kasper, “Theory and Practice: James Madison and the Constitutional Power to Appoint Supreme Court Justices,” Quinnipiac Law Review 38, no. 4 (2020): 654–55, footnote28_tiy1COpXNEgi 28 Several prominent Republicans went so far as to publicly commit to holding open the seat indefinitely in the event that a Democrat won the 2016 presidential election. See Sabrina Siddiqui, “Republican Senators Vow to Block Any Clinton Supreme Court Nominee Forever,” Guardian, November 2, 2016, https://www.theguardian.com/law/2016/nov/01/republican-senators-oppose-clinton-supreme-court-nominee. Four years later, when Justice Ginsburg died 45 days before Election Day, footnote29_aheKZdRI4rVR 29 Alicia Bannon, “Justice Ginsburg Should Not Be Replaced Until After the Election,” Brennan Center for Justice, September 19, 2020, https://www.brennancenter.org/our-work/analysis-opinion/justice-ginsburg-should-not-be-replaced-until-after-election. President Trump and Senate Republicans rushed to fill the seat, holding a confirmation hearing for Amy Coney Barrett while early voting was already under way. footnote30_iVdkmqWY3GPm 30 Nina Totenberg, “Many Firsts at Confirmation Hearings for Judge Amy Coney Barrett,” NPR, October 12, 2020, https://www.npr.org/2020/10/12/922482941/many-firsts-at-confirmation-hearings-for-judge-amy-coney-barrett.
While the constitutional brawls over the vacancies of Justices Ginsburg and Scalia were particularly hostile, even less bitter confirmation fights have been characterized by vitriol and threats of escalation. footnote31_dxPdTeOTtad7 31 Peniel E. Joseph, “The Racist, Sexist Mudslinging at Ketanji Brown Jackson Is Disgraceful,” CNN, March 23, 2022, https://www.cnn.com/2022/03/23/opinions/ketanji-brown-jackson-hearing-racism-joseph/index.html; Carl Hulse, “McConnell Suggests He Would Block a Biden Nominee for the Supreme Court in 2024,” New York Times, June 14, 2021, https://www.nytimes.com/2021/06/14/us/politics/mcconnell-biden-supreme-court.html. If existing dynamics continue, appointing justices during periods of divided government may simply become impossible.
Checks and balances are deeply rooted in our constitutional system. With respect to the judiciary, the Constitution achieves this in large part by giving elected officials — the president, with the advice and consent of the Senate — the power to appoint justices, so that over time the Court’s membership reflects prevailing public values. footnote32_gnKVJ4KmoPDn 32 “A foundational norm, which may come clearly into view only when it is violated, may thus underlie the legitimacy of the judiciary: an approximate proportionality principle, according to which the long-term ideological balance of the Court should roughly reflect the long-term ideological preferences of the people. The Constitution provides a partial assurance of that proportionality by vesting the authority to appoint Supreme Court Justices in the President with the advice and consent of the Senate.” Matthew A. Seligman, “Court Packing, Senate Stonewalling, and the Constitutional Politics of Judicial Appointments Reform,” Arizona State Law Journal 54, no. 2 (December 2022): 593, https://arizonastatelawjournal.org/wp-content/uploads/2022/12/Seligman_Publication.pdf. For example, proponents of the Seventeenth Amendment, which provides for the direct election of senators, advocated for its passage in part so that the public could more directly hold the judicial branch accountable during a period when it was perceived to be captured by corporate interests. footnote33_jt6rSL5mXCuD 33 Kansas Sen. Joseph Bristow, for instance, specifically attributed “the rapid growth of the sentiment for a change in the method of electing Senators” to concerns about the corporate capture of the federal courts. Joshua P. Zoffer and David Singh Grewal, “The Counter-Majoritarian Difficulty of a Minoritarian Judiciary,” California Law Review Online 11 (October 2020): 446, https://lawcat.berkeley.edu/record/1210021?ln=en.
But this connection between the Court and the public has grown tenuous, undercutting the Court’s democratic legitimacy. footnote34_lbRmZGPJEVny 34 Schwarz, “Saving the Supreme Court.” For instance, it is increasingly common for presidents to have no opportunity to fill a single Supreme Court seat during a four-year term. Up until President Jimmy Carter, this was a rare occurrence: from President George Washington through President Gerald Ford, only 5 out of 47 presidential terms were without any Supreme Court appointments. But in the 12 presidential terms since then, there have already been 4 with no appointments. footnote35_jLh8tnGoSkB6 35 U.S. Supreme Court, “Justices 1789 to Present,” accessed March 27, 2023, https://www.supremecourt.gov/about/members_text.aspx; and Presidential Commission, Final Report, 115.
There are also wide disparities in the number of seats individual presidents have had the opportunity to fill, contributing to stark imbalances on the Court. Beginning with President George H. W. Bush, who appointed the longest-serving justice currently on the bench (Justice Thomas), Republicans have won four out of nine presidential terms and won the popular vote only twice. But Republicans have appointed six of the current nine justices. footnote36_mWkvtX69gIbA 36 “The lack of proportionality between the public’s political preferences and appointments to the Court is compounded by perceived procedural irregularities in the appointment of Justices over the last five years.” Seligman, “Court Packing,” 594. This supermajority has already had a transformative effect, handing down rulings on issues including civil rights, gun rights, and abortion that disproportionately harm vulnerable communities and are unmoored from the values of the American public. footnote37_tbaIzYdMWSoP 37 Jessee, Malhotra, and Sen, “A Decade-Long Longitudinal Survey,” 119. Not surprisingly, public confidence in the Court has plummeted. footnote38_dSxonZDQqlZq 38 Jones, “Supreme Court Trust.”
Alexander Hamilton, Federalist No. 78, National Archives: Founders Online, May 28, 1788, https://founders.archives.gov/documents/Hamilton/01–04–02–0241#ARHN-01–04–02–0241-fn-0001.
William Rehnquist, “Remarks of the Chief Justice,” lecture, My Life in the Law series, Duke University School of Law, April 13, 2002, https://www.supremecourt.gov/publicinfo/speeches/viewspeech/sp_04–13–02.
Gregory S. Fisher, “Reining In Those Pesky Federal Judges: Re-examining the Purpose and Premise of Life Tenure — A Perspective,” Federal Lawyer 53, no. 1 (January 2006): 31.
Presidential Commission, Closing Reflections (statement, Greene), 3–4; and Schwarz, “Saving the Supreme Court.”
Lee Epstein and Eric Posner, “If the Supreme Court Is Nakedly Political, Can It Be Just?,” New York Times, July 9, 2018, https://www.nytimes.com/2018/07/09/opinion/supreme-court-nominee-trump.html.
See Tyler Cooper et al., “Retiring Life Tenure: On Term Limits and Regular Appointments at the Supreme Court,” Cardozo Law Review 42 (2021): 2766, https://cardozolawreview.com/retiring-life-tenure-on-term-limits-and-regular-appointments-at-the-supreme-court.
Calabresi and Lindgren, “Term Limits,” 771; and David Ingold, Cedric Sam, and Mira Rojanasakul, “Biden Nominee Jackson Could Serve for Decades with a Conservative Supreme Court Majority,” Bloomberg, January 28, 2022, https://www.bloomberg.com/graphics/2022-supreme-court-justice-stephen-breyer-retirement/#xj4y7vzkg.
These justices include Barrett, Gorsuch, Kagan, Jackson, Roberts, and Thomas. Since 1972 there has been only one justice who was older than 55 when appointed to the Court. Presidential Commission on the Supreme Court, Perspectives from Supreme Court Practitioners and Views on the Confirmation Process, July 20, 2021 (written testimony of Ilya Shapiro, vice president, Cato Institute), 7, https://www.whitehouse.gov/wp-content/uploads/2021/07/Shapiro-Testimony.pdf.
See Ingold, Sam, and Rojanasakul, “Biden Nominee Jackson”; Calabresi and Lindgren, “Term Limits,” 800–801; and Kristin Bialik and John Gramlich, “Younger Supreme Court Appointees Stay on the Bench Longer, but There Are Plenty of Exceptions,” Pew Research Center, February 8, 2017, https://www.pewresearch.org/fact-tank/2017/02/08/younger-supreme-court-appointees-stay-on-the-bench-longer-but-there-are-plenty-of-exceptions/.
Adam Chilton et al., “Designing Supreme Court Term Limits,” Southern California Law Review 95, no. 1 (May 2022): 10–11, https://southerncalifornialawreview.com/wp-content/uploads/2022/05/Epps_Final-Color.pdf.
Supreme Court of the United States, “Justices 1798 to Present,” accessed March 7, 2023, https://www.supremecourt.gov/about/members_text.aspx.
John G. Roberts (associate counsel to President Reagan) to Fred F. Fielding (White House counsel), Re: DOJ Proposed Report on S.J. 93, October 3, 1983, https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1110&context=historical.
As former circuit court judge Michael McConnell stated in testimony to the Presidential Commission on the Supreme Court, “Eighteen years of service on the highest court in the land is enough for any human being. Age, infirmity, and close-mindedness tend to take their toll.” Presidential Commission on the Supreme Court of the United States, The Contemporary Debate over Supreme Court Reform: Origins and Perspectives, June 30, 2021 (written testimony of Michael McConnell), https://www.whitehouse.gov/wp-content/uploads/2021/06/McConnell-SCOTUS-Commission-Testimony.pdf. Numerous studies have shown the effects of normal aging on cognition and reasoning, and “even the maintained ability of crystallized knowledge has been shown to decline steadily after about age 70 or 75.” Alan S. Kaufman, “The Precipitous Decline in Reasoning and Other Key Abilities with Age and Its Implications for Federal Judges,” Journal of Intelligence 9, no. 4 (October 25, 2021), https://doi.org/10.3390/jintelligence9040052. According to one study, since the 20th century at least 11 justices on the Court suffered “a serious mental decline” during their final years of service. David R. Stras and Ryan W. Scott, “Retaining Life Tenure: The Case for a ‘Golden Parachute,’ ” Washington University Law Quarterly 83, no. 5 (2005): 1437, https://www.repository.law.indiana.edu/facpub/394. See also David J. Garrow, “Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment,” Chicago Law Review 67, no. 4 (2000): 995–1086, https://chicagounbound.uchicago.edu/uclrev/vol67/iss4/2/; and Joseph Goldstein, “Life Tenure for Federal Judges Raises Issues of Senility, Dementia,” ProPublica, January 18, 2011, https://www.propublica.org/article/life-tenure-for-federal-judges-raises-issues-of-senility-dementia.
“The reason we do not allow the Justices to pick their own successors is precisely because we believe that the judiciary, just like the legislature and the executive, needs to be subject to popular control and to the system of checks and balances.” Calabresi and Lindgren, “Term Limits,” 812.
Ruth Marcus, Supreme Ambition: Brett Kavanaugh and the Conservative Takeover of the Supreme Court (New York: Simon & Schuster, 2019), 2–3, 50–51; and Christopher Cadelago, Nancy Cook, and Andrew Restuccia, “How a Private Meeting with Kennedy Helped Trump Get to ‘Yes’ on Kavanaugh,” Politico, July 9, 2018, https://www.politico.com/story/2018/07/09/brett-kavanaugh-trump-private-meeting-706137.
Scott Lemieux, “When Do Supreme Court Justices Retire? When the Politics Are Right,” Washington Post, August 28, 2019, https://perma.cc/JJL5-XYCV.
David Lauter, “Essential Politics: Supreme Court Nomination Hearings — Long Awful — Have Gotten Worse. Here’s Why,” Los Angeles Times, March 25, 2022, https://www.latimes.com/politics/newsletter/2022–03–25/ketanji-brown-jackson-hearings-essential-politics. In 1994 Justice Stephen Breyer received 87 votes during his confirmation, including 79 percent of those cast by Republicans. This was consistent with the experience of approximately three-quarters of all Supreme Court nominees up to that point (including those confirmed by voice vote). Since then, no nominee has had this level of support. Geoffrey Skelley, “It’s Harder Than Ever to Confirm a Supreme Court Justice,” FiveThirtyEight, February 2, 2022, https://fivethirtyeight.com/features/its-harder-than-ever-to-confirm-a-supreme-court-justice/.
The four justices most recently appointed to the Court were confirmed with bare majorities of no more than 54 votes: Justice Gorsuch received 54 votes, Justice Kavanaugh 50 votes, Justice Barrett 52, and Justice Jackson 53. United States Senate, “Supreme Court Nominations (1789–Present),” accessed March 23, 2023, https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm.
Sen. Sheldon D. Whitehouse with Jennifer Mueller, The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court (New York: The New Press, 2023); Brennan Center for Justice, “Follow the Money: Tracking TV Spending on the Kavanaugh Nomination,” July 26, 2018, https://www.brennancenter.org/our-work/research-reports/follow-money-tracking-tv-spending-kavanaugh-nomination; Douglas Keith, “What We Know About the Money Behind Brett Kavanaugh’s Confirmation Fight,” HuffPost, September 3, 2018, https://www.opensecrets.org/news/2020/01/supreme-court-wellspring-committee-stry-2020/; Madison Alder, “GOP Dark Money Criticisms in Supreme Court Fight Mirror Democrats,” Bloomberg Law, March 18, 2022, https://news.bloomberglaw.com/us-law-week/gop-dark-money-criticisms-in-supreme-court-fight-mirror-democrats-1; and Lachlan Markay, “Progressives Prep Big Spending for SCOTUS Confirmation,” Axios, March 6, 2022, https://www.axios.com/2022/03/06/progressives-scotus-confirmation-spending.
Alicia Bannon, “The Rise of Dark Money Is a Threat to Judicial Independence,” Brennan Center for Justice, July 6, 2018, https://www.brennancenter.org/our-work/analysis-opinion/rise-dark-money-threat-judicial-independence.
Gerhardt and Painter, “Majority Rule and the Future of Judicial Selection,” 270–75; Daniel Epps and Ganesh Sitaraman, “How to Save the Supreme Court,” Yale Law Journal 129, no. 1 (October 2019): 169, https://www.yalelawjournal.org/feature/how-to-save-the-supreme-court; Steven Calabresi, “End the Poisonous Process of Picking Supreme Court Justices,” New York Times, September 22, 2020, https://www.nytimes.com/2020/09/22/opinion/ginsburg-supreme-court-confirmation.html; and Bob Bauer, “Six Ways to Fix the Supreme Court Confirmation Process,” Atlantic, October 16, 2018, https://www.theatlantic.com/ideas/archive/2018/10/how-fix-confirmation-process/573085/.
Eric T. Kasper, “Theory and Practice: James Madison and the Constitutional Power to Appoint Supreme Court Justices,” Quinnipiac Law Review 38, no. 4 (2020): 654–55, footnote28_tiy1COpXNEgi
Several prominent Republicans went so far as to publicly commit to holding open the seat indefinitely in the event that a Democrat won the 2016 presidential election. See Sabrina Siddiqui, “Republican Senators Vow to Block Any Clinton Supreme Court Nominee Forever,” Guardian, November 2, 2016, https://www.theguardian.com/law/2016/nov/01/republican-senators-oppose-clinton-supreme-court-nominee.
Alicia Bannon, “Justice Ginsburg Should Not Be Replaced Until After the Election,” Brennan Center for Justice, September 19, 2020, https://www.brennancenter.org/our-work/analysis-opinion/justice-ginsburg-should-not-be-replaced-until-after-election.
Peniel E. Joseph, “The Racist, Sexist Mudslinging at Ketanji Brown Jackson Is Disgraceful,” CNN, March 23, 2022, https://www.cnn.com/2022/03/23/opinions/ketanji-brown-jackson-hearing-racism-joseph/index.html; Carl Hulse, “McConnell Suggests He Would Block a Biden Nominee for the Supreme Court in 2024,” New York Times, June 14, 2021, https://www.nytimes.com/2021/06/14/us/politics/mcconnell-biden-supreme-court.html.
“A foundational norm, which may come clearly into view only when it is violated, may thus underlie the legitimacy of the judiciary: an approximate proportionality principle, according to which the long-term ideological balance of the Court should roughly reflect the long-term ideological preferences of the people. The Constitution provides a partial assurance of that proportionality by vesting the authority to appoint Supreme Court Justices in the President with the advice and consent of the Senate.” Matthew A. Seligman, “Court Packing, Senate Stonewalling, and the Constitutional Politics of Judicial Appointments Reform,” Arizona State Law Journal 54, no. 2 (December 2022): 593, https://arizonastatelawjournal.org/wp-content/uploads/2022/12/Seligman_Publication.pdf.
Kansas Sen. Joseph Bristow, for instance, specifically attributed “the rapid growth of the sentiment for a change in the method of electing Senators” to concerns about the corporate capture of the federal courts. Joshua P. Zoffer and David Singh Grewal, “The Counter-Majoritarian Difficulty of a Minoritarian Judiciary,” California Law Review Online 11 (October 2020): 446, https://lawcat.berkeley.edu/record/1210021?ln=en.
U.S. Supreme Court, “Justices 1789 to Present,” accessed March 27, 2023, https://www.supremecourt.gov/about/members_text.aspx; and Presidential Commission, Final Report, 115.
“The lack of proportionality between the public’s political preferences and appointments to the Court is compounded by perceived procedural irregularities in the appointment of Justices over the last five years.” Seligman, “Court Packing,” 594.
Among democracies, the United States stands virtually alone when it comes to the tenure of its justices. Today no other major democracy gives lifetime seats to judges who sit on constitutional courts. footnote1_uSiE4XboS0Ns 1 Calabresi and Lindgren, “Term Limits,” 819–22; and Presidential Commission, Closing Reflections (statement, Greene), 5. The only other countries that grant high constitutional court judges life tenure without limitation are Estonia, Luxembourg, Oman, and, arguably, Haiti. Kevin Costello, “Supreme Court Politics and Life Tenure: A Comparative Inquiry,” Hastings Law Journal 71, no. 4 (2020): 1153–54, https://repository.uchastings.edu/hastings_law_journal/vol71/iss4/9/. This includes both common law countries, such as Ireland, New Zealand, and South Africa, and civil law countries, such as France, Germany, and Spain, as well as former U.S. territories whose constitutions were heavily influenced by the U.S. Constitution, such as the Philippines. footnote2_zx2TlKw5qwTS 2 Presidential Commission, Term Limits and Turnover (written testimony, Ginsburg), 3. Even democracies that previously granted constitutional high court judges unbounded life tenure, including Australia, Canada, and the United Kingdom, have since abandoned this practice. footnote3_sAwwao6HbsVG 3 Presidential Commission on the Supreme Court of the United States, Panel 2 hearing, July 20, 2021 (written testimony of Vicki C. Jackson, Laurence H. Tribe Professor of Constitutional Law, Harvard Law School), https://www.whitehouse.gov/wp-content/uploads/2021/07/Jackson-Testimony.pdf. Since 1787 the global trend has been decidedly against unbounded life tenure. Among the 800-plus constitutions adopted since 1787, fewer than 20 percent have granted high court judges life tenure. In those cases, there is virtually always a limitation on tenure, such as an age limit. Presidential Commission, Term Limits and Turnover (written testimony, Ginsburg), 3. Nearly all countries with specialized constitutional courts impose fixed terms for the judges who sit on them, most of which are nonrenewable. footnote4_aWRmn410n25m 4 Presidential Commission, Term Limits and Turnover (written testimony, Ginsburg), 3–4.
Virtually every state court system has likewise rejected life tenure. Forty-seven states require that their supreme court justices serve for fixed terms, subject to reelection or reappointment processes. Most states have mandatory retirement ages. Only three provide justices with indefinite terms, but two of them — Massachusetts and New Hampshire — impose age limits. Only Rhode Island grants its high court justices life tenure without an age limit. footnote5_qKsH4g6dtfYg 5 Brennan Center for Justice, “Judicial Selection: Significant Figures,” October 11, 2022, https://www.brennancenter.org/our-work/research-reports/judicial-selection-significant-figures. Federal bankruptcy and magistrate judges likewise serve fixed terms. footnote6_uZDHna6n5LJV 6 28 U.S.C. § 152; and 28 U.S.C. § 631.
Term limits are also widely used in the United States for other important offices. George Washington famously set a two-term norm for the presidency by leaving office after eight years. When Franklin D. Roosevelt broke the tradition with a four-term presidency, the country responded by passing the Twenty-Second Amendment to limit presidents to two terms. Thirty-seven states impose term limits on governors, 15 states impose term limits on legislators, and 9 of the 10 largest cities in the nation impose term limits on mayors. footnote7_qdmuPBLi3zIA 7 “States with Gubernatorial Term Limits,” Ballotpedia, accessed March 26, 2023, https://ballotpedia.org/States_with_gubernatorial_term_limits; National Conference of State Legislatures, “The Term Limited States,” accessed March 26, 2023, https://www.ncsl.org/about-state-legislatures/the-term-limited-states; and Richard G. Niemi and Kristin K. Rulison, “The Effects of Term Limits on State Legislatures and Their Applicability to the Executive Branch,” Albany Government Law Review 4, no. 3 (August 2011): 661, https://www.albanygovernmentlawreview.org/article/23849-the-effects-of-term-limits-on-state-legislatures-and-their-applicability-to-the-executive-branch. Not surprisingly, large, bipartisan majorities of Americans likewise support term limits for Supreme Court justices. footnote8_mOkeyWCP321P 8 “Medication Abortions and the U.S. Supreme Court,” NPR/PBS NewsHour/Marist National Poll, April 24, 2023, https://maristpoll.marist.edu/polls/medication-abortions-and-the-u-s-supreme-court. See also appendix.
Calabresi and Lindgren, “Term Limits,” 819–22; and Presidential Commission, Closing Reflections (statement, Greene), 5. The only other countries that grant high constitutional court judges life tenure without limitation are Estonia, Luxembourg, Oman, and, arguably, Haiti. Kevin Costello, “Supreme Court Politics and Life Tenure: A Comparative Inquiry,” Hastings Law Journal 71, no. 4 (2020): 1153–54, https://repository.uchastings.edu/hastings_law_journal/vol71/iss4/9/.
Presidential Commission on the Supreme Court of the United States, Panel 2 hearing, July 20, 2021 (written testimony of Vicki C. Jackson, Laurence H. Tribe Professor of Constitutional Law, Harvard Law School), https://www.whitehouse.gov/wp-content/uploads/2021/07/Jackson-Testimony.pdf. Since 1787 the global trend has been decidedly against unbounded life tenure. Among the 800-plus constitutions adopted since 1787, fewer than 20 percent have granted high court judges life tenure. In those cases, there is virtually always a limitation on tenure, such as an age limit. Presidential Commission, Term Limits and Turnover (written testimony, Ginsburg), 3.
“States with Gubernatorial Term Limits,” Ballotpedia, accessed March 26, 2023, https://ballotpedia.org/States_with_gubernatorial_term_limits; National Conference of State Legislatures, “The Term Limited States,” accessed March 26, 2023, https://www.ncsl.org/about-state-legislatures/the-term-limited-states; and Richard G. Niemi and Kristin K. Rulison, “The Effects of Term Limits on State Legislatures and Their Applicability to the Executive Branch,” Albany Government Law Review 4, no. 3 (August 2011): 661, https://www.albanygovernmentlawreview.org/article/23849-the-effects-of-term-limits-on-state-legislatures-and-their-applicability-to-the-executive-branch.
“Medication Abortions and the U.S. Supreme Court,” NPR/PBS NewsHour/Marist National Poll, April 24, 2023, https://maristpoll.marist.edu/polls/medication-abortions-and-the-u-s-supreme-court. See also appendix.
Congress can address many of the Supreme Court’s structural shortcomings and help restore public confidence in the Court by passing a statute that establishes an 18-year active term for justices and a regularized process for creating and filling vacancies. Specific proposals vary. footnote1_k9WKcy8ZbPhl 1 For a variety of proposed reforms on term limits, see Chilton et al., “Designing Supreme Court Term Limits”; Kermit Roosevelt III, “Court Reform and the Biden Commission,” Harvard Journal of Law and Public Policy per Curiam, no. 5 (Spring 2022): 1–8, https://www.harvard-jlpp.com/court-reform-and-the-biden-commission-kermit-roosevelt-iii; Roger C. Cramton, “Reforming the Supreme Court,” California Law Review 95 (Fall 2007), https://scholarship.law.cornell.edu/facpub/1211; Calabresi and Lindgren, “Term Limits”; and Presidential Commission on the Supreme Court of the United States, In Support of a Congressional Statute Establishing an Eighteen-Year Limit on Active Supreme Court Service, with Emeritus Status Thereafter and a Purely Prospective Phase-In, July 20, 2021 (written testimony of Akhil Amar, Sterling Professor of Law and Political Science, Yale University), https://www.whitehouse.gov/wp-content/uploads/2021/07/Amar-Testimony.pdf. But at its core, this reform has two components that work in tandem: restructuring life tenure for justices into two phases (active service and senior service) and regularizing appointments so that there are two vacancies per four-year presidential term.
Article III of the Constitution creates a system of life tenure for justices by providing that they “shall hold their Offices during good Behaviour.” footnote2_iJycr7dBXGk2 2 U.S. Const., art. III, § 1. Under the active/senior justice model, Supreme Court justices retain life tenure, but their tenure is divided into two distinct periods: a phase of active service lasting 18 years and a senior phase lasting for the remainder of a justice’s life term. footnote3_zGVlwAzIYwgT 3 Proposals similar to the active/senior justice model are sometimes referred to as the junior/senior justice model. The active/senior justice model is similar to the term limits bill first introduced by Rep. Ro Khanna in 2020 and reintroduced in 2021. Supreme Court Term Limits and Regular Appointments Act of 2021, H.R. 5140, 117th Congress (2021), https://www.congress.gov/bill/117th-congress/house-bill/5140. Rep. Hank Johnson and Sen. Sheldon Whitehouse introduced similar bills in 2022. See Supreme Court Tenure Establishment and Retirement Modernization Act of 2022, S. 4706, 117th Congress (2022), https://www.congress.gov/bill/117th-congress/senate-bill/4706; and Supreme Court Tenure Establishment and Retirement Modernization Act of 2022, H. 8500, 117th Congress (2022), https://www.congress.gov/bill/117th-congress/house-bill/8500. Two other prominent models also feature 18-year term limits and a regularized appointment process under which two new justices would be appointed to the Court every presidential term. Under the original/appellate jurisdiction model, the Court would be divided into two panels. One panel would consist of all justices and would hear cases falling within the Court’s original jurisdiction. A second panel would hear cases falling within the Court’s appellate jurisdiction but would consist of only the nine most junior justices. Justices serving for more than 18 years would sit only on the original jurisdiction panel, barring a recusal or unexpected vacancy on the appellate jurisdiction panel. Such justices would also sit by designation on the lower federal courts. This distinction is rooted in Article III’s proviso that the Court’s appellate jurisdiction is subject to “such Exceptions, and under such Regulations as the Congress shall make.” Under the designated Supreme Court justice model, presidents would no longer appoint anyone to the office of judge of the Supreme Court. Instead, when a vacancy occurs, the president would elevate a sitting federal judge from a lower court to sit by designation on the Supreme Court for 18 years, after which this judge would return to service in the lower federal courts and be replaced by a different sitting federal judge. For more on each of these models, see Presidential Commission, Final Report, 136–40. This framework would apply to both associate justices and the chief justice. After 18 years, a new chief justice would be appointed and the prior chief would assume senior status. footnote4_kqdCpOx48oOI 4 The position of chief justice is referenced in the Constitution in connection with presiding over a president’s impeachment trial (Art. I, §3, cl. 6), but the Constitution is silent as to the selection process as well as any other duties of the office. The active/senior justice model maintains the current practice under which the chief justice is appointed by the president and confirmed by the Senate. Supreme Court of the United States, “FAQs — General Information,” accessed May 18, 2023, https://www.supremecourt.gov/about/faq_general.aspx. Some term limits models propose having the longest-serving active justice on the Court serve as chief justice, with the position rotating every two years. See Presidential Commission, In Support of a Congressional Statute (written testimony, Amar). This is similar to chief judge selection in the lower federal courts, where chief judges assume the position based on seniority. 28 U.S.C. § 45; 28 U.S.C. § 136. On state supreme courts, practices vary. In some states the chief justice is selected by the other justices, while in other states the chief justice is selected in the same manner as the associate justices are selected. See, e.g., Amanda Powers and Douglas Keith, “Key 2022 State Supreme Court Election Results and What They Mean,” Brennan Center for Justice, November 9, 2022, https://www.brennancenter.org/our-work/analysis-opinion/key-2022-state-supreme-court-election-results-and-what-they-mean; and “Kentucky Supreme Court Elects New Chief Justice,” WYMT, November 15, 2022, https://www.wymt.com/2022/11/15/kentucky-supreme-court-elects-new-chief-justice.
Under this system, senior justices would no longer regularly decide cases on the Court’s docket. Instead they would be tasked with performing other important judicial duties, including sitting by designation to hear cases in the lower federal courts, assisting the chief justice with management and administration of the federal judiciary, and stepping in to hear cases on the Supreme Court’s docket upon a recusal by an active justice or in the event of an unexpected vacancy. Some versions of this proposal further provide that senior justices would continue to hear cases falling under the Supreme Court’s original jurisdiction. footnote5_vDSbDlAXKIPM 5 See Jack Balkin, “Don’t Pack the Court. Regularize Appointments,” Balkinization, October 5, 2020, https://balkin.blogspot.com/2020/10/dont-pack-court-regularize-appointments.html.
This model builds off an existing system that has applied to lower court judges for more than a century and to Supreme Court justices for nearly 90 years. footnote6_zvXybpF0Ij7w 6 Frederic Block, “Senior Status: An Active Senior Judge Corrects Some Common Misunderstandings,” Cornell Law Review 92, no. 3 (March 2007): 545, https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3058&context=clr. Under federal law, judges, including Supreme Court justices, who reach age 65 with 15 years of service, or who otherwise qualify on the basis of their age and years of service, become eligible to either retire from their judicial office or retire from active service. footnote7_f8KIzR2BP7Db 7 Under the “Rule of 80,” judges become eligible for retirement or senior status when they reach age 65 and the sum of their age and years of service as an Article III judge equals 80. See 28 U.S.C. § 371(c); 28 U.S.C. § 371(b); and Block, “Senior Status,” 536. (They can also continue service as an active judge.) Judges who retire from their office are freed from the performance of judicial duties, can pursue other employment, and receive an annuity for life equal to their salary at the time of retirement. footnote8_dHYT3aiUCKKX 8 28 U.S.C. § 371(a); Block, “Senior Status,” 536. By contrast, judges who retire from active service (on the lower courts they are called “senior judges”) retain their office, continue to perform judicial duties, and receive their salary with ongoing increases and cost-of-living adjustments. footnote9_mukaoCvtgiat 9 28 U.S.C. § 371(b); Block, “Senior Status,” 536.
To maintain senior status, judges must either carry a reduced annual caseload in an amount equivalent to three months of work by an active judge or perform other substantial judicial duties not involving courtroom participation. footnote10_cRxhEhgEkPKE 10 28 U.S.C. § 371(e)(1). With respect to the Supreme Court, federal law authorizes the chief justice to designate justices who have retired from active service to sit on lower federal courts. footnote11_m7vCx9oV5bwT 11 28 U.S.C. § 294. Justices regularly do so. For example, since retiring from active service in 2009, Justice David Souter has sat by designation in the First Circuit and heard more than 500 cases, and Justice Sandra Day O’Connor regularly heard cases on federal appeals courts for more than a decade after her retirement in 2006. footnote12_k8jRF0DKm2Cl 12 Jessica Gresko, “Supreme Court Justice Breyer Has Options as a Retiree,” Associated Press, July 7, 2022, https://apnews.com/article/ketanji-brown-jackson-covid-us-supreme-court-entertainment-health-697d7a86ed921ff50a32e049b7ba057c; and Jessica Gresko, “Sandra Day O’Connor Withdraws from Public Life,” Associated Press, October 18, 2018, https://apnews.com/article/north-america-ap-top-news-anthony-kennedy-courts-supreme-courts-d568a18d769c439bb22de75ab210d4da. Justices who have retired from active service also regularly maintain chambers and employ law clerks. footnote13_lxfvnpV6Oo0J 13 See, e.g., Rory K. Little, “Clerking for a Retired Supreme Court Justice — My Experience of Being ‘Shared’ Among Five Justices in One Term,” George Washington Law Review 88, no. 7 (July 2020): 83–114, https://www.gwlr.org/wp-content/uploads/2020/08/88-Geo.-Wash.-L.-Rev.-Arguendo-83.pdf.
The active/senior justice model largely tracks this existing framework but provides a fixed schedule for the assumption of senior status rather than leaving the timing to the justices’ discretion. It also provides senior justices with a more extensive set of responsibilities than does the current system. footnote14_cOhFClOAsX9L 14 Under the active/senior justice model, justices who are younger than 47 at their swearing in would be elevated to senior status before turning 65. Because the model creates this possibility, adjustments to existing retirement schemes would be required. But current law sets the threshold for judges to take senior status at 65 for prudential reasons, not because the Constitution requires it. Congress has previously set different thresholds for the retirement of federal judges. For instance, in the predecessor to current law, the retirement age was 70. See Block, “Senior Status,” 535. As discussed later, Congress has the constitutional power to make these changes by statute because, as in the current system, justices would continue to hold their judicial office during good behavior.
The other main component of this reform is regularized appointments, with a Supreme Court seat opening in the first and third years of a president’s term. With 18-year terms and nine active justices, Supreme Court appointments can be fully regularized so that each president fills two, and only two, seats every four years. footnote15_w8OHJ3TBDOSh 15 See Chilton et al., “Designing Supreme Court Term Limits,” 30–31.
This reform creates predictability in the event of a death or premature departure by a justice from the bench. Such occurrences should be relatively rare given that justices would be in active service for only 18 years; it has been more than half a century since a justice served for less than 18 years. Still, the implementing statute can provide that the most recently elevated senior justice would step in under such circumstances until there is a scheduled vacancy. footnote16_oKozEiiRf63z 16 As new justices become eligible for senior status, they would functionally serve as an active justice for an additional two years until another active justice assumes senior status. This cycle would continue until the uncompleted term was scheduled to expire, at which point the seat would be filled according to the regular process. While this would result in one or more justices serving for 20 years, it would return the Court to nine active members as quickly as possible, without giving any president an extra appointment. But Congress could also address this unusual situation in at least two other ways. It could authorize the president to appoint an interim justice to serve the remainder of the departing justice’s term. See Calabresi and Lindgren, “Term Limits,” 827. Alternatively, it could authorize the president to make an additional appointment at the time of the next scheduled appointment. See Paul D. Carrington and Roger C. Cramton, “The Supreme Court Renewal Act: A Return to Basic Principles,” in Reforming the Court: Term Limits for Supreme Court Justices, ed. Paul D. Carrington and Roger C. Cramton (Durham, NC: Carolina Academic Press, 2006), 471. (If no senior justice is available, there would be no changes until the next scheduled appointment.)
The thornier concern is how to harmonize a regularized appointment process with polarized politics and recurring periods of divided government. In light of Senate Republicans’ obstruction of Merrick Garland’s nomination and subsequent threats of further escalation over Supreme Court appointments, the possibility of Senate impasses looms large. footnote17_xDqqtyjPIwBE 17 Hulse, “McConnell Suggests He Would Block”; and Seligman, “Court Packing,” 600–601.
There are good reasons to believe a regularized appointment system would help disincentivize partisan gamesmanship. First, term limits reform would reduce the benefits of obstruction because Supreme Court seats would no longer offer the promise of a multigenerational imprint on the Court. footnote18_bvNcc2RUsz69 18 Should a vacancy not be filled during a presidential term, it would carry over to the next four-year term but with the 18-year clock ticking. For example, a carried-over seat that opened in the first year of a president’s term would be associated with 14 years of active service if filled in year 1 of the subsequent presidential term. Second, obstruction during periods of divided government would become increasingly politically costly as the public would come to expect that each president should be able to fill two Supreme Court seats per term. Obstruction would exact a particularly heavy toll if the statute is structured so that seats become vacant on the first day of each new Congress. In that case, the opposition would need to block a nominee for at least two years (and often four) in order to deny the president a seat. While sitting senators have expressed an openness to blocking Supreme Court nominees from the opposing party for the duration of a presidential election year, far fewer have expressed willingness to do so for an entire congressional or presidential term. footnote19_fpyXoIpPDzvb 19 Mike DeBonis and Paul Kane, “John McCain Backs Off Promise Republicans Would Block Clinton Supreme Court Nominees,” Chicago Tribune, October 17, 2016, https://www.chicagotribune.com/nation-world/ct-john-mccain-hillary-clinton-supreme-court-20161017-story.html; Siddiqui, “Republican Senators Vow”; and Hulse, “McConnell Suggests He Would Block.” And in the event that senators did chart a course for four years of obstruction on a purely partisan basis, voters would have an opportunity to voice their opposition during the midterms.
Establishing two vacancies per presidential term would also create greater potential for compromise than is generally available under the current system, reducing incentives for obstruction. Knowing ahead of time the number and timing of vacancies that will occur over a president’s term creates opportunities for bargaining over nominees or settling on consensus choices during periods of divided government. For example, should a president’s term begin with divided government, an impasse over confirmations could be resolved by appointing one justice supported by the president’s party on the condition that the president nominate a compromise justice to fill the next available vacancy. footnote20_naKLDO2gyKox 20 Daniel Hemel, “Can Structural Changes Fix the Supreme Court?,” Journal of Economic Perspectives 35, no. 1 (Winter 2021): 137, https://doi.org/10.1257/jep.35.1.119. Unexpected vacancies late in a president’s term would no longer be destabilizing because they would not create a new seat to fill.
Finally, to further induce senators to act on a president’s nomination, Congress could accompany this reform with “fast-track” statutory mechanisms to help ensure that nominees receive an up-or-down vote on the Senate floor. footnote21_q8uafQnKCteB 21 In 2023, Sen. Jeff Merkley introduced a bill to institute various fast-track mechanisms that would virtually guarantee that every Supreme Court nominee receives consideration and a floor vote. See Every Supreme Court Nominee Deserves Timely Consideration Act, S. 859, 118th Congress (2023), https://www.congress.gov/bill/118th-congress/senate-bill/859/text. Fast-track legislation is a common vehicle that Congress uses to prevent certain measures from being indefinitely obstructed. It does so by requiring automatic discharge from committee or allowing for a privileged motion to discharge from committee if a measure is not reported out after a fixed period, granting the measure privileged access on the floor of the House or Senate, setting limits on time for debate, and prohibiting legislators from proposing floor amendments. footnote22_btEJqJfL287i 22 Christopher M. Davis, “Expedited or ‘Fast-Track’ Legislative Procedures,” Congressional Research Service, August 31, 2015, https://sgp.fas.org/crs/misc/RS20234.pdf. Congress has a long history of passing such procedures to speed up recurring must-pass legislation, such as trade agreements, budgets, and military base closures. footnote23_lno6A7xoBHQE 23 See Aaron-Andrew P. Bruhl, “If the Judicial Confirmation Process Is Broken, Can a Statute Fix It?,” Nebraska Law Review 85 (2007): 971, 980, https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1132&context=nlr; and Molly Reynolds, Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate (Washington, DC: Brookings Institution, 2017), 14–37. Supreme Court confirmations, particularly under a regularized appointment system, fit this mold.
Such a statute could provide that, upon the nomination of a candidate by the president to fill a vacancy on the Court, the nomination must be received by the Senate and referred to the Senate Judiciary Committee within a stipulated period. The Senate Judiciary Committee would have a fixed number of days to act on the nomination. Failure to act would lead to an automatic discharge from the committee, with the nomination placed on the Senate calendar and a floor vote required within a set period. footnote24_v5XLhvzoaU9f 24 While fast-track procedures could result in a nominee being confirmed without a hearing by the Judiciary Committee, for most of American history, Supreme Court justices were confirmed without confirmation hearings. As Sen. John Cornyn has noted, hearings are not constitutionally required and are a modern invention by Congress. See John Cornyn, “Our Broken Judicial Confirmation Process and the Need for Filibuster Reform,” Harvard Journal of Law and Public Policy 27, no. 1 (Fall 2003): 227n29, https://law-journals-books.vlex.com/vid/our-broken-confirmation-filibuster-56589236. These elements would ensure that every nominee at least receives a full vote by the Senate — a marked improvement over the status quo. footnote25_lxdGE1nTJA4g 25 See Michael W. McConnell, “What Are the Judiciary’s Politics?,” Pepperdine Law Review 45, no. 3 (2018): 479–80, https://digitalcommons.pepperdine.edu/plr/vol45/iss3/1/.
To avoid potential constitutional objections, fast-track procedures typically include a provision that they can be changed “at any time, in the same manner and to the same extent” as a chamber’s internal rules. footnote26_zEtQDcGVYswU 26 See Reynolds, Exceptions to the Rule, 21. Article I, Section 5 provides that “each House may determine the Rules of its Proceedings.” While there are potential objections even to statutes that have this disclaimer, there are numerous similar statutes imposing fast-track frameworks that have been good law — and by which Congress has abided — for years. See Bruhl, “If the Judicial Confirmation Process Is Broken,” 973. If applying this fast-track procedure to Supreme Court confirmation is deemed unconstitutional, then a wide range of similar statutes would also be resting on constitutionally shaky ground. Regardless, if such arguments carry the day, the Senate could adopt fast-track procedures as a Senate rule. Separately, some may object to fast-tracking Supreme Court confirmations on the theory that such a statute would essentially permit the House and the president to bind the Senate to certain rules governing debate within the body against the body’s will. However, the Senate would need to pass any such legislation and would continue to have the power to change its rules. Moreover, Congress has previously passed statutes that provide fast-track limitations that apply to only one chamber of Congress. See Reynolds, Exceptions to the Rule, 26. Thus, the Senate could override this fast-track system by changing its rules. Nevertheless, fast-track legislation has often established procedural norms that are hard in practice to override, serving as a bulwark against inaction. footnote27_gs9nCIZhCPbv 27 See Bruhl, “If the Judicial Confirmation Process Is Broken,” 1012–13.
Term limits reform also presents an opportunity to improve current practices on the Court related to recusal and conflicts of interest. The implementing statute, for example, should provide that in the event a justice steps aside from hearing a case due to a conflict of interest, the most recently elevated senior justice would step in. This would address current disincentives for justices to recuse themselves from cases because of concerns that their recusal will leave the Court with fewer than nine members. footnote28_r139RN9uKh94 28 Louis J. Virelli III, “Supreme Court Recusal and the Appearance of Politics,” Denver Law Review, March 29, 2021, https://www.denverlawreview.org/dlr-online-article/supremecourtrecusal. Being able to tap into a pool of senior justices to hear cases would also help to ensure that recusals do not cause the Court to drop below quorum, leaving it unable to hear a case. footnote29_jFZESgxT7osj 29 28 U.S.C. § 1. In 2008, for example, four members of the Court recused themselves due to financial and personal conflicts of interest in a case concerning companies that did business in apartheid-era South Africa. Three justices owned stock in one of the companies, and the son of a fourth justice worked for one of the firms involved in the case. Linda Greenhouse, “Justices’ Conflicts Halt Apartheid Appeal,” New York Times, May 13, 2008, https://www.nytimes.com/2008/05/13/washington/13scotus.html; and New York Times Editorial Board, “Court Without a Quorum,” New York Times, May 18, 2008, https://www.nytimes.com/2008/05/18/opinion/18sun3.html.
The implementing statute could also be structured to alleviate concerns about conflicts of interest stemming from justices’ postretirement activities. Under a term limits system, some justices may decline senior status and look to pursue activities related to law or politics after leaving active service. footnote30_rWzbmxiOJREy 30 Historically, justices have sometimes taken political posts after serving on the Supreme Court, notwithstanding life tenure. Joshua Zeitz, “The Supreme Court Has Never Been Apolitical,” Politico, April 3, 2022, https://www.politico.com/news/magazine/2022/04/03/the-supreme-court-has-never-been-apolitical-00022482. The Constitution grants Congress broad authority to regulate the ethical conduct of justices in order to mitigate concerns posed by such activities, footnote31_cAk8fCjZmALi 31 Amanda Frost, “Judicial Ethics and Supreme Court Exceptionalism,” Georgetown Journal of Legal Ethics 26, no. 3 (Summer 2013): 478, https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=2389&context=facsch_lawrev. including by imposing a bar on political fundraising or on pursuing outside employment during justices’ tenure and for a set period after leaving public service. footnote32_fJt6ppwGehmh 32 See United States Courts, “Code of Conduct for United States Judges,” March 12, 2019, https://www.uscourts.gov/file/25752; and Frost, “Judicial Ethics.”
Congress could set these rules directly by statute or require the Court to adopt a code of conduct — something the Court has declined thus far to do voluntarily despite broad support for binding ethics rules among both the public and other judges. footnote33_deZcRig6Y0sZ 33 Alison Durkee, “Trust in Supreme Court Drops to New Low, Poll Finds as Ethics Bill Moves Forward in House,” Forbes, May 13, 2022, https://www.forbes.com/sites/alisondurkee/2022/05/12/trust-in-supreme-court-drops-to-new-low-poll-finds-as-ethics-bill-moves-forward-in-house/?sh=76526c5847b7; and Nate Raymond, “Most Judges in Survey Support U.S. Supreme Court Having an Ethics Code,” Reuters, June 22, 2022, https://www.reuters.com/legal/government/most-judges-survey-support-us-supreme-court-having-ethics-code-2022–06–22. The code of conduct that applies to lower court federal judges imposes a variety of ethical constraints, including limits on judges’ charitable, financial, and fiduciary activities. Most of these constraints apply explicitly to senior judges. footnote34_dZXcyLEs1AMa 34 United States Courts, “Code of Conduct for United States Judges.” Applying similar rules to the Supreme Court would substantially alleviate the risks of conflicts of interest. footnote35_jNn309Y5RbpW 35 Johanna Kalb and Alicia Bannon, “Supreme Court Ethics Reform,” Brennan Center for Justice, September 24, 2019, www.brennancenter.org/sites/default/files/2019–09/Report_2019_09_SCOTUS_Ethics_FINAL.pdf.
For a variety of proposed reforms on term limits, see Chilton et al., “Designing Supreme Court Term Limits”; Kermit Roosevelt III, “Court Reform and the Biden Commission,” Harvard Journal of Law and Public Policy per Curiam, no. 5 (Spring 2022): 1–8, https://www.harvard-jlpp.com/court-reform-and-the-biden-commission-kermit-roosevelt-iii; Roger C. Cramton, “Reforming the Supreme Court,” California Law Review 95 (Fall 2007), https://scholarship.law.cornell.edu/facpub/1211; Calabresi and Lindgren, “Term Limits”; and Presidential Commission on the Supreme Court of the United States, In Support of a Congressional Statute Establishing an Eighteen-Year Limit on Active Supreme Court Service, with Emeritus Status Thereafter and a Purely Prospective Phase-In, July 20, 2021 (written testimony of Akhil Amar, Sterling Professor of Law and Political Science, Yale University), https://www.whitehouse.gov/wp-content/uploads/2021/07/Amar-Testimony.pdf.
Proposals similar to the active/senior justice model are sometimes referred to as the junior/senior justice model. The active/senior justice model is similar to the term limits bill first introduced by Rep. Ro Khanna in 2020 and reintroduced in 2021. Supreme Court Term Limits and Regular Appointments Act of 2021, H.R. 5140, 117th Congress (2021), https://www.congress.gov/bill/117th-congress/house-bill/5140. Rep. Hank Johnson and Sen. Sheldon Whitehouse introduced similar bills in 2022. See Supreme Court Tenure Establishment and Retirement Modernization Act of 2022, S. 4706, 117th Congress (2022), https://www.congress.gov/bill/117th-congress/senate-bill/4706; and Supreme Court Tenure Establishment and Retirement Modernization Act of 2022, H. 8500, 117th Congress (2022), https://www.congress.gov/bill/117th-congress/house-bill/8500. Two other prominent models also feature 18-year term limits and a regularized appointment process under which two new justices would be appointed to the Court every presidential term. Under the original/appellate jurisdiction model, the Court would be divided into two panels. One panel would consist of all justices and would hear cases falling within the Court’s original jurisdiction. A second panel would hear cases falling within the Court’s appellate jurisdiction but would consist of only the nine most junior justices. Justices serving for more than 18 years would sit only on the original jurisdiction panel, barring a recusal or unexpected vacancy on the appellate jurisdiction panel. Such justices would also sit by designation on the lower federal courts. This distinction is rooted in Article III’s proviso that the Court’s appellate jurisdiction is subject to “such Exceptions, and under such Regulations as the Congress shall make.” Under the designated Supreme Court justice model, presidents would no longer appoint anyone to the office of judge of the Supreme Court. Instead, when a vacancy occurs, the president would elevate a sitting federal judge from a lower court to sit by designation on the Supreme Court for 18 years, after which this judge would return to service in the lower federal courts and be replaced by a different sitting federal judge. For more on each of these models, see Presidential Commission, Final Report, 136–40.
The position of chief justice is referenced in the Constitution in connection with presiding over a president’s impeachment trial (Art. I, §3, cl. 6), but the Constitution is silent as to the selection process as well as any other duties of the office. The active/senior justice model maintains the current practice under which the chief justice is appointed by the president and confirmed by the Senate. Supreme Court of the United States, “FAQs — General Information,” accessed May 18, 2023, https://www.supremecourt.gov/about/faq_general.aspx. Some term limits models propose having the longest-serving active justice on the Court serve as chief justice, with the position rotating every two years. See Presidential Commission, In Support of a Congressional Statute (written testimony, Amar). This is similar to chief judge selection in the lower federal courts, where chief judges assume the position based on seniority. 28 U.S.C. § 45; 28 U.S.C. § 136. On state supreme courts, practices vary. In some states the chief justice is selected by the other justices, while in other states the chief justice is selected in the same manner as the associate justices are selected. See, e.g., Amanda Powers and Douglas Keith, “Key 2022 State Supreme Court Election Results and What They Mean,” Brennan Center for Justice, November 9, 2022, https://www.brennancenter.org/our-work/analysis-opinion/key-2022-state-supreme-court-election-results-and-what-they-mean; and “Kentucky Supreme Court Elects New Chief Justice,” WYMT, November 15, 2022, https://www.wymt.com/2022/11/15/kentucky-supreme-court-elects-new-chief-justice.
Frederic Block, “Senior Status: An Active Senior Judge Corrects Some Common Misunderstandings,” Cornell Law Review 92, no. 3 (March 2007): 545, https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3058&context=clr.
Under the “Rule of 80,” judges become eligible for retirement or senior status when they reach age 65 and the sum of their age and years of service as an Article III judge equals 80. See 28 U.S.C. § 371(c); 28 U.S.C. § 371(b); and Block, “Senior Status,” 536.
See, e.g., Rory K. Little, “Clerking for a Retired Supreme Court Justice — My Experience of Being ‘Shared’ Among Five Justices in One Term,” George Washington Law Review 88, no. 7 (July 2020): 83–114, https://www.gwlr.org/wp-content/uploads/2020/08/88-Geo.-Wash.-L.-Rev.-Arguendo-83.pdf.
Under the active/senior justice model, justices who are younger than 47 at their swearing in would be elevated to senior status before turning 65. Because the model creates this possibility, adjustments to existing retirement schemes would be required. But current law sets the threshold for judges to take senior status at 65 for prudential reasons, not because the Constitution requires it. Congress has previously set different thresholds for the retirement of federal judges. For instance, in the predecessor to current law, the retirement age was 70. See Block, “Senior Status,” 535.
As new justices become eligible for senior status, they would functionally serve as an active justice for an additional two years until another active justice assumes senior status. This cycle would continue until the uncompleted term was scheduled to expire, at which point the seat would be filled according to the regular process. While this would result in one or more justices serving for 20 years, it would return the Court to nine active members as quickly as possible, without giving any president an extra appointment. But Congress could also address this unusual situation in at least two other ways. It could authorize the president to appoint an interim justice to serve the remainder of the departing justice’s term. See Calabresi and Lindgren, “Term Limits,” 827. Alternatively, it could authorize the president to make an additional appointment at the time of the next scheduled appointment. See Paul D. Carrington and Roger C. Cramton, “The Supreme Court Renewal Act: A Return to Basic Principles,” in Reforming the Court: Term Limits for Supreme Court Justices, ed. Paul D. Carrington and Roger C. Cramton (Durham, NC: Carolina Academic Press, 2006), 471.
Should a vacancy not be filled during a presidential term, it would carry over to the next four-year term but with the 18-year clock ticking. For example, a carried-over seat that opened in the first year of a president’s term would be associated with 14 years of active service if filled in year 1 of the subsequent presidential term.
Mike DeBonis and Paul Kane, “John McCain Backs Off Promise Republicans Would Block Clinton Supreme Court Nominees,” Chicago Tribune, October 17, 2016, https://www.chicagotribune.com/nation-world/ct-john-mccain-hillary-clinton-supreme-court-20161017-story.html; Siddiqui, “Republican Senators Vow”; and Hulse, “McConnell Suggests He Would Block.”
Daniel Hemel, “Can Structural Changes Fix the Supreme Court?,” Journal of Economic Perspectives 35, no. 1 (Winter 2021): 137, https://doi.org/10.1257/jep.35.1.119.
In 2023, Sen. Jeff Merkley introduced a bill to institute various fast-track mechanisms that would virtually guarantee that every Supreme Court nominee receives consideration and a floor vote. See Every Supreme Court Nominee Deserves Timely Consideration Act, S. 859, 118th Congress (2023), https://www.congress.gov/bill/118th-congress/senate-bill/859/text.
Christopher M. Davis, “Expedited or ‘Fast-Track’ Legislative Procedures,” Congressional Research Service, August 31, 2015, https://sgp.fas.org/crs/misc/RS20234.pdf.
See Aaron-Andrew P. Bruhl, “If the Judicial Confirmation Process Is Broken, Can a Statute Fix It?,” Nebraska Law Review 85 (2007): 971, 980, https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1132&context=nlr; and Molly Reynolds, Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate (Washington, DC: Brookings Institution, 2017), 14–37.
While fast-track procedures could result in a nominee being confirmed without a hearing by the Judiciary Committee, for most of American history, Supreme Court justices were confirmed without confirmation hearings. As Sen. John Cornyn has noted, hearings are not constitutionally required and are a modern invention by Congress. See John Cornyn, “Our Broken Judicial Confirmation Process and the Need for Filibuster Reform,” Harvard Journal of Law and Public Policy 27, no. 1 (Fall 2003): 227n29, https://law-journals-books.vlex.com/vid/our-broken-confirmation-filibuster-56589236.
See Michael W. McConnell, “What Are the Judiciary’s Politics?,” Pepperdine Law Review 45, no. 3 (2018): 479–80, https://digitalcommons.pepperdine.edu/plr/vol45/iss3/1/.
See Reynolds, Exceptions to the Rule, 21. Article I, Section 5 provides that “each House may determine the Rules of its Proceedings.” While there are potential objections even to statutes that have this disclaimer, there are numerous similar statutes imposing fast-track frameworks that have been good law — and by which Congress has abided — for years. See Bruhl, “If the Judicial Confirmation Process Is Broken,” 973. If applying this fast-track procedure to Supreme Court confirmation is deemed unconstitutional, then a wide range of similar statutes would also be resting on constitutionally shaky ground. Regardless, if such arguments carry the day, the Senate could adopt fast-track procedures as a Senate rule. Separately, some may object to fast-tracking Supreme Court confirmations on the theory that such a statute would essentially permit the House and the president to bind the Senate to certain rules governing debate within the body against the body’s will. However, the Senate would need to pass any such legislation and would continue to have the power to change its rules. Moreover, Congress has previously passed statutes that provide fast-track limitations that apply to only one chamber of Congress. See Reynolds, Exceptions to the Rule, 26.
Louis J. Virelli III, “Supreme Court Recusal and the Appearance of Politics,” Denver Law Review, March 29, 2021, https://www.denverlawreview.org/dlr-online-article/supremecourtrecusal.
28 U.S.C. § 1. In 2008, for example, four members of the Court recused themselves due to financial and personal conflicts of interest in a case concerning companies that did business in apartheid-era South Africa. Three justices owned stock in one of the companies, and the son of a fourth justice worked for one of the firms involved in the case. Linda Greenhouse, “Justices’ Conflicts Halt Apartheid Appeal,” New York Times, May 13, 2008, https://www.nytimes.com/2008/05/13/washington/13scotus.html; and New York Times Editorial Board, “Court Without a Quorum,” New York Times, May 18, 2008, https://www.nytimes.com/2008/05/18/opinion/18sun3.html.
Historically, justices have sometimes taken political posts after serving on the Supreme Court, notwithstanding life tenure. Joshua Zeitz, “The Supreme Court Has Never Been Apolitical,” Politico, April 3, 2022, https://www.politico.com/news/magazine/2022/04/03/the-supreme-court-has-never-been-apolitical-00022482.
Amanda Frost, “Judicial Ethics and Supreme Court Exceptionalism,” Georgetown Journal of Legal Ethics 26, no. 3 (Summer 2013): 478, https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=2389&context=facsch_lawrev.
See United States Courts, “Code of Conduct for United States Judges,” March 12, 2019, https://www.uscourts.gov/file/25752; and Frost, “Judicial Ethics.”
Johanna Kalb and Alicia Bannon, “Supreme Court Ethics Reform,” Brennan Center for Justice, September 24, 2019, www.brennancenter.org/sites/default/files/2019–09/Report_2019_09_SCOTUS_Ethics_FINAL.pdf.
On their own, either 18-year term limits or regularized appointments would help address much of the structural dysfunction that is damaging the Supreme Court’s public legitimacy — and the implementing statute should have a strong severability provision so that each reform can stand on its own. footnote1_zvKEAhMoINex 1 Alicia Bannon, “An Overlooked Idea for Fixing the Supreme Court,” Brennan Center for Justice, March 12, 2021, https://www.brennancenter.org/our-work/analysis-opinion/overlooked-idea-fixing-supreme-court. But the two are mutually reinforcing. Working together, they would be transformative.
Term limits combined with regularized appointments would enhance the democratic link between the Court and the public. Under this system, every presidential term would carry equal opportunity to shape the Court’s direction. No individual president would have the chance to install a majority on the Court, nor would a political party be able to lock in a particular ideology for generations over a short period. In addition, adopting these reforms would remove current incentives to appoint increasingly younger justices so as to secure power for a longer period. footnote2_sZQ1UWamTtuM 2 Micah Schwartzman and David Fontana, “Trump Picked the Youngest Judges to Sit on the Federal Bench. Your Move, Biden,” Washington Post, February 21, 2021, https://www.washingtonpost.com/outlook/2021/02/16/court-appointments-age-biden-trump-judges-age. It would also eliminate opportunities for justices to strategically retire, returning power over the trajectory of the Court to the public via their representatives, as the Constitution envisions.
These reforms would put the United States in the company of every other major democracy in the world. They would also bring the Court closer to its historical norms with respect to both the length of justices’ tenure and the number of appointments per presidential term: since the founding, the mean, median, and modal number of Supreme Court vacancies has been approximately two per presidential term. footnote3_f0qdyOsVKD6u 3 Supreme Court of the United States, “FAQs — Supreme Court Justices,” accessed June 6, 2023, https://www.supremecourt.gov/about/faq_justices.aspx; and Presidential Commission, Final Report, 114–15.
More frequent turnover on the Court would also be likely to improve judicial decision-making. Social science research shows that organizations greatly benefit from fresh voices and changes in interpersonal dynamics and that entrenched leadership in organizations, especially small ones in which a few individuals wield great power, often leads to poorer decision-making. footnote4_gOKq5V0ghkFr 4 Jason P. Davis and Kathleen M. Eisenhardt, “Rotating Leadership and Collaborative Innovation: Recombination Processes in Symbiotic Relationships,” Administrative Science Quarterly 56, no. 2 (2011): 194; and Amir Erez, Jeffrey A. Lepine, and Heather Elms, “Effects of Rotated Leadership and Peer Evaluation on the Functioning and Effectiveness of Self-Managed Teams: A Quasi-Experiment,” Personnel Psychology 55, no. 4 (December 2006): 929, https://doi.org/10.1111/j.1744–6570.2002.tb00135.x. See also Presidential Commission, Final Report, 136–40. This concern is especially pronounced for Supreme Court justices, who hold one of the most elite and powerful positions in the world and whose decisions regularly affect the daily lives of ordinary Americans, often in profound ways. While working as a White House attorney, Chief Justice Roberts expressed similar concerns, writing that “setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges. Both developments would, in my view, be healthy ones.” footnote5_bbMhAmwwX36g 5 Roberts to Fielding, Re: DOJ Proposed Report on S.J. 93.
Regular turnover would also create more opportunities to bring diverse life experiences to the Court. By many measures, the Supreme Court is deeply unrepresentative of both the American public and the legal profession. For example, there has never been an Asian American or Native American justice nor an openly LGBTQ+ justice. footnote6_o6GSlSspA3MN 6 Jessica Campisi and Brandon Griggs, “Of the 115 Supreme Court Justices in US History, All but 7 Have Been White Men,” CNN, March 24, 2022, https://www.cnn.com/2022/03/24/politics/supreme-court-justices-minorities-cec/index.html; and Jesse Wegman, “What If the Supreme Court Had an L.G.B.T. Justice?,” New York Times, October 12, 2019, https://www.nytimes.com/2019/10/12/opinion/sunday/what-if-the-supreme-court-had-an-lgbt-justice.html. Among the sitting justices, all but one attended Harvard or Yale Law School, and only one is from the western United States. Justice Jackson is the only justice in history to have worked as a public defender. footnote7_uE4TOzVl4Vov 7 Alicia Bannon, “A Public Defender on the High Court,” Brennan Center for Justice, March 1, 2022, https://www.brennancenter.org/our-work/analysis-opinion/public-defender-high-court. See also Jay Schweikert, “Professional Diversity Is Essential for the Supreme Court to Enforce the Constitution,” Cato Institute, March 21, 2022, https://www.cato.org/blog/professional-diversity-essential-supreme-court-enforce-constitution. With more frequent appointments, presidents can bring greater diversity to the Court so that it better embodies the values of the American public. Courts that reflect the diversity of the communities they serve inspire public confidence, enhance deliberations among judges, produce a richer jurisprudence, and create role models for underrepresented groups. footnote8_nUBa08wdeZUm 8 Alicia Bannon and Douglas Keith, “What Research Shows About the Importance of Supreme Court Diversity,” Brennan Center for Justice, February 1, 2022, https://www.brennancenter.org/our-work/analysis-opinion/what-research-shows-about-importance-supreme-court-diversity.
One critical question is whether imposing an 18-year term of active service would undermine the Court’s judicial independence. Alexander Hamilton famously defended life tenure as necessary to protect the Court from the political branches of government. footnote9_mBhrD06qTnpd 9 Hamilton, Federalist No. 78. But, as borne out by the experience of every other major democracy in the world, there is no evidence that long, nonrenewable terms pose a threat to judicial independence. footnote10_oLVyfTSsuHnF 10 Presidential Commission, Closing Reflections (statement, Greene), 6; and Presidential Commission, Term Limits and Turnover (written testimony, Ginsburg), 6. While studies of state courts have shown that fears about job security impact judicial independence, they have also shown that state court judges facing a mandatory retirement age without a future election demonstrate greater independence from political pressure. See Alicia Bannon, “Choosing State Judges: A Plan for Reform,” Brennan Center for Justice, October 10, 2018, https://www.brennancenter.org/our-work/policy-solutions/choosing-state-judges-plan-reform.
The power to decide cases until death or retirement is not the only, or even the primary, basis for the Court’s independence. The Court’s independence relies on a range of factors, including public perceptions of its legitimacy, other branches’ respect for its role and decisions, and its own stewardship of its constitutionally assigned powers. Inasmuch as the details of a justice’s term of service impact the Court’s overall independence, what is most critical is that justices’ tenure on the Court and lifetime of financial compensation do not depend on winning the ongoing approval of the political branches of government. footnote11_hWjT8plEozuG 11 “Presumably, what relieves judges of the incentive to please is not the prospect of indefinite service, but the awareness that their continuation in office does not depend on securing the continuing approval of the political branches. Independence, therefore, could be achieved by mandating fixed, nonrenewable terms of service.” Henry Paul Monaghan, “The Confirmation Process: Law or Politics?,” Harvard Law Review 101 (1988): 1211, https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1776&context=faculty_scholarship. Under the active/senior justice model, justices would retain their job security and salaries regardless of how they might rule in cases. There would be no greater opportunity for pressure or political retaliation than under the existing system. footnote12_spGZGMZvqAlS 12 In fact, the multi-decade terms enabled by life tenure may actually be detrimental to judicial independence on the lower courts. Because of the high stakes that come with life tenure, justices are increasingly nominated and confirmed on the basis, at least in part, of a demonstrable showing of a particular judicial ideology. See David R. Dow and Sanat Mehta, “Does Eliminating Life Tenure for Article III Judges Require a Constitutional Amendment?,” Duke Journal of Constitutional Law and Public Policy 16 (2021): 108, https://scholarship.law.duke.edu/djclpp/vol16/iss1/4/. If a seat on the Court no longer came with the power to oversee the law for multiple generations, lower court judges might be less incentivized to use opinion-writing to stake out political positions. See Sen. Sheldon Whitehouse, “The Scheme 13: Auditioning,” March 15, 2022, https://www.whitehouse.senate.gov/news/speeches/the-scheme-13-auditioning-.
In fact, there is good reason to believe that the current system actually threatens judicial independence: strategic retirements and raw power politics during the confirmation process invite attacks on the Court’s legitimacy and contribute to public perceptions that the Court is a partisan institution. footnote13_cukyF0didCjI 13 Gary Langer, “More Say Politics, Not the Law, Drive Supreme Court Decisions: POLL,” ABC News, May 9, 2023, https://abcnews.go.com/Politics/politics-law-drive-supreme-court-decisions-poll/story?id=99168846. The judicial branch has neither an army nor the power of the purse; it relies on public legitimacy to underwrite its power and independence. Dysfunction in the existing system can therefore threaten the Court’s functional independence. footnote14_nKD9QOx6ye1Y 14 See Judge Paul L. Friedman, “Threats to Judicial Independence and the Rule of Law,” American Bar Association, November 18, 2019, https://www.americanbar.org/groups/litigation/initiatives/committee-on-american-judicial-system/in-the-news/threats-to-judicial-independence-and-rule-of-law/.
Some critics also contend that regularized appointments would add to the politicization of the Court by making Supreme Court picks a more prominent issue on the presidential campaign trail. footnote15_oof7fxv85sJv 15 See Epps and Sitaraman, “How to Save the Supreme Court,” 174. Of course, candidates already do campaign about Supreme Court nominations. As a candidate, Trump released a list of potential Supreme Court picks, and both he and Hillary Clinton promised to appoint justices with specific positions on Roe v. Wade. footnote16_u3HGZwernwpp 16 Jeremy Diamond, “Trump Unveils His Potential Supreme Court Nominees,” CNN, May 18 2016, https://www.cnn.com/2016/05/18/politics/donald-trump-supreme-court-nominees/index.html; Tessa Berenson, “Watch Clinton Describe Her Ideal Supreme Court Justice,” Time, March 9, 2016, https://time.com/4253569/hillary-clinton-supreme-court-nominee-debate; and Dan Mangan, “Trump: I’ll Appoint Justices to Overturn Roe v. Wade Abortion Case,” CNBC, October 19, 2016, https://www.cnbc.com/2016/10/19/trump-ill-appoint-supreme-court-justices-to-overturn-roe-v-wade-abortion-case.html. Biden promised to appoint a Black woman to the Court. footnote17_zYvjZfygMg9u 17 Quint Forgey, “Biden Says He’ll Release List of Black Women as Potential SCOTUS Nominees,” Politico, June 30, 2020, https://www.politico.com/news/2020/06/30/biden-black-female-supreme-court-nominees-345622. Indeed, regularized appointments are likely to reduce the electoral salience of potential nominations because such a system ensures that no single president can lock in power for multiple generations. footnote18_pBH4W1JslIAc 18 David E. Pozen, “Hardball and/as Anti-Hardball,” New York University Journal of Legislation & Public Policy 21, no. 4 (2019): 951, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3470457. Even a two-term president whose party controls the Senate for all eight years (a situation that is unprecedented in the modern era) footnote19_wfgxvdF2CpnD 19 United States House of Representatives, “Party Government Since 1857,” accessed June 4, 2023, https://history.house.gov/Institution/Presidents-Coinciding/Party-Government/. could appoint at most four ideologically aligned justices, which is not enough on its own to command a majority on the Court.
For similar reasons, the concern that term limits would destabilize the law due to justices more regularly cycling on and off the Court is also unpersuasive. Under the current system, there is no limit on the number of vacancies a president may fill, and there are strong incentives to use brief periods of unified party control to reconfigure the Court. By contrast, regularized appointments limit the imprint that any one president will have on the Court and encourage compromise during periods of divided government.
Alicia Bannon, “An Overlooked Idea for Fixing the Supreme Court,” Brennan Center for Justice, March 12, 2021, https://www.brennancenter.org/our-work/analysis-opinion/overlooked-idea-fixing-supreme-court.
Micah Schwartzman and David Fontana, “Trump Picked the Youngest Judges to Sit on the Federal Bench. Your Move, Biden,” Washington Post, February 21, 2021, https://www.washingtonpost.com/outlook/2021/02/16/court-appointments-age-biden-trump-judges-age.
Supreme Court of the United States, “FAQs — Supreme Court Justices,” accessed June 6, 2023, https://www.supremecourt.gov/about/faq_justices.aspx; and Presidential Commission, Final Report, 114–15.
Jason P. Davis and Kathleen M. Eisenhardt, “Rotating Leadership and Collaborative Innovation: Recombination Processes in Symbiotic Relationships,” Administrative Science Quarterly 56, no. 2 (2011): 194; and Amir Erez, Jeffrey A. Lepine, and Heather Elms, “Effects of Rotated Leadership and Peer Evaluation on the Functioning and Effectiveness of Self-Managed Teams: A Quasi-Experiment,” Personnel Psychology 55, no. 4 (December 2006): 929, https://doi.org/10.1111/j.1744–6570.2002.tb00135.x. See also Presidential Commission, Final Report, 136–40.
Jessica Campisi and Brandon Griggs, “Of the 115 Supreme Court Justices in US History, All but 7 Have Been White Men,” CNN, March 24, 2022, https://www.cnn.com/2022/03/24/politics/supreme-court-justices-minorities-cec/index.html; and Jesse Wegman, “What If the Supreme Court Had an L.G.B.T. Justice?,” New York Times, October 12, 2019, https://www.nytimes.com/2019/10/12/opinion/sunday/what-if-the-supreme-court-had-an-lgbt-justice.html.
Alicia Bannon, “A Public Defender on the High Court,” Brennan Center for Justice, March 1, 2022, https://www.brennancenter.org/our-work/analysis-opinion/public-defender-high-court. See also Jay Schweikert, “Professional Diversity Is Essential for the Supreme Court to Enforce the Constitution,” Cato Institute, March 21, 2022, https://www.cato.org/blog/professional-diversity-essential-supreme-court-enforce-constitution.
Alicia Bannon and Douglas Keith, “What Research Shows About the Importance of Supreme Court Diversity,” Brennan Center for Justice, February 1, 2022, https://www.brennancenter.org/our-work/analysis-opinion/what-research-shows-about-importance-supreme-court-diversity.
Presidential Commission, Closing Reflections (statement, Greene), 6; and Presidential Commission, Term Limits and Turnover (written testimony, Ginsburg), 6. While studies of state courts have shown that fears about job security impact judicial independence, they have also shown that state court judges facing a mandatory retirement age without a future election demonstrate greater independence from political pressure. See Alicia Bannon, “Choosing State Judges: A Plan for Reform,” Brennan Center for Justice, October 10, 2018, https://www.brennancenter.org/our-work/policy-solutions/choosing-state-judges-plan-reform.
“Presumably, what relieves judges of the incentive to please is not the prospect of indefinite service, but the awareness that their continuation in office does not depend on securing the continuing approval of the political branches. Independence, therefore, could be achieved by mandating fixed, nonrenewable terms of service.” Henry Paul Monaghan, “The Confirmation Process: Law or Politics?,” Harvard Law Review 101 (1988): 1211, https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1776&context=faculty_scholarship.
In fact, the multi-decade terms enabled by life tenure may actually be detrimental to judicial independence on the lower courts. Because of the high stakes that come with life tenure, justices are increasingly nominated and confirmed on the basis, at least in part, of a demonstrable showing of a particular judicial ideology. See David R. Dow and Sanat Mehta, “Does Eliminating Life Tenure for Article III Judges Require a Constitutional Amendment?,” Duke Journal of Constitutional Law and Public Policy 16 (2021): 108, https://scholarship.law.duke.edu/djclpp/vol16/iss1/4/. If a seat on the Court no longer came with the power to oversee the law for multiple generations, lower court judges might be less incentivized to use opinion-writing to stake out political positions. See Sen. Sheldon Whitehouse, “The Scheme 13: Auditioning,” March 15, 2022, https://www.whitehouse.senate.gov/news/speeches/the-scheme-13-auditioning-.
Jeremy Diamond, “Trump Unveils His Potential Supreme Court Nominees,” CNN, May 18 2016, https://www.cnn.com/2016/05/18/politics/donald-trump-supreme-court-nominees/index.html; Tessa Berenson, “Watch Clinton Describe Her Ideal Supreme Court Justice,” Time, March 9, 2016, https://time.com/4253569/hillary-clinton-supreme-court-nominee-debate; and Dan Mangan, “Trump: I’ll Appoint Justices to Overturn Roe v. Wade Abortion Case,” CNBC, October 19, 2016, https://www.cnbc.com/2016/10/19/trump-ill-appoint-supreme-court-justices-to-overturn-roe-v-wade-abortion-case.html.
Quint Forgey, “Biden Says He’ll Release List of Black Women as Potential SCOTUS Nominees,” Politico, June 30, 2020, https://www.politico.com/news/2020/06/30/biden-black-female-supreme-court-nominees-345622.
David E. Pozen, “Hardball and/as Anti-Hardball,” New York University Journal of Legislation & Public Policy 21, no. 4 (2019): 951, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3470457.
United States House of Representatives, “Party Government Since 1857,” accessed June 4, 2023, https://history.house.gov/Institution/Presidents-Coinciding/Party-Government/.
The reforms described in this paper can be implemented by statute. Doing so is consistent with the Constitution’s text and structure; with the ways in which Congress has long regulated the Court, including the existing system of senior judges; and with the values of judicial independence that animate Article III and its Good Behavior Clause.
Article III, which structures the judicial branch, is sparsely detailed. Section 1 provides that “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” and that “the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” Section 2 enumerates the types of cases and controversies to which “the judicial Power shall extend,” identifies the types of cases under the Supreme Court’s original jurisdiction, and establishes that “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Section 3 discusses punishment for treason.
The value of judicial independence is embedded in this constitutional design. By providing that judges hold their offices during good behavior, the Constitution prevents Congress from ousting judges from office other than through the high bar of impeachment and removal. And by prohibiting the diminution of judicial salaries, the Constitution guards against retaliation by the political branches for unpopular decisions. footnote1_jeYmO4hLtbGo 1 As Hamilton writes in Federalist 78, good-behavior tenure “is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.” See also Sanford Levinson, “Life Tenure and the Supreme Court: What Is to Be Done?,” in Reforming the Court: Term Limits for Supreme Court Justices, 379.
At the same time, while Article III mandates that there be a Supreme Court vested with “the judicial Power of the United States,” it says remarkably little about how the Supreme Court should operate. Rather, it leaves it to Congress to make significant determinations regarding the Court’s structure and powers pursuant to Article III and its authority to “make all Laws which shall be necessary and proper.” footnote2_fFISQvKqc3wM 2 U.S. Const. art. I, § 8. See also An Ethical Judiciary: Transparency and Accountability for the 21st Century Courts, Hearing Before the Subcomm. on Federal Courts, Oversight, Agency Action and Federal Rights, 117th Cong. (2022), 455–57 (written testimony of Amanda Frost, Bronfman Professor of Law and Government, American University Washington College of Law), https://www.judiciary.senate.gov/imo/media/doc/Frost%20Testimony.pdf; and Presidential Commission, In Support of a Congressional Statute (written testimony, Amar).
Congress has repeatedly exercised this authority. For example, it has changed the number of justices on the Court six times, with sizes ranging from 5 to 10 justices. footnote3_g3oRZXq66HvE 3 U.S. Supreme Court, “About the Court: The Court as an Institution,” accessed March 23, 2023, https://www.supremecourt.gov/about/institution.aspx. See also Congressional Research Service, “‘Court Packing’: Legislative Control over the Size of the Supreme Court,” December 14, 2020, https://crsreports.congress.gov/product/pdf/LSB/LSB10562. It also has substantially changed the Court’s jurisdiction. footnote4_jydJK8QePINo 4 Christopher Jon Sprigman, “Congress’s Article III Power and the Process of Constitutional Change,” New York University Law Review 95, no. 6 (December 2020): 1778–1859, https://www.nyulawreview.org/issues/volume-95-number-6/congresss-article-iii-power-and-the-process-of-constitutional-change. On exercises of Congress’s authority to deny federal courts any power to review certain laws, see Dawn M. Chutkow, “Jurisdiction Stripping: Litigation, Ideology, and Congressional Control of the Courts,” Journal of Politics 70, no. 4 (2008): 1058, https://www.journals.uchicago.edu/doi/abs/10.1017/S002238160808105X. It was not until 1891, for example, that Congress granted the Court the power of discretionary appellate review. footnote5_z1NhCxyaXPLt 5 Martha J. Dragich, “Once a Century: Time for a Structural Overhaul of the Federal Courts,” Wisconsin Law Review 11 (1996): 73, https://repository.law.wisc.edu/s/uwlaw/item/27661. Congress has also altered the duties of justices. For instance, when Congress created circuit courts through the Judiciary Act of 1789, it did not create corresponding circuit judges. Instead, Congress mandated that Supreme Court justices sit alongside local district judges to hear cases in a practice known as circuit riding. footnote6_dG8cT588g2xS 6 Steven G. Calabresi and David C. Presser, “Reintroducing Circuit Riding: A Timely Proposal,” Minnesota Law Review 90 (2006): 1390–91, https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1032&context=mlr. In 1803, in Stuart v. Laird, the Supreme Court upheld circuit riding as constitutional, against an objection that the justices had never been separately appointed as circuit judges. footnote7_rb40otLWKsPx 7 Stuart v. Laird, 5 U.S. 299 (1803). Congress maintained this practice for more than 100 years until it became untenable for the justices to fulfill their duties on both circuit courts and the Supreme Court. footnote8_oPxkE9QIVPWG 8 Calabresi and Presser, “Reintroducing Circuit Riding,” 1406–09.
With respect to the implementation of regularized appointments, Congress would be acting well within the bounds of its authority under Article III and the Necessary and Proper Clause. Regularizing appointments simply sets a schedule for filling vacancies on the Supreme Court. It creates new judicial seats in the first and third years of a president’s term that a president may then fill, with the advice and consent of the Senate, pursuant to the president’s ordinary authority under the Constitution’s Appointments Clause. And when a justice dies or retires from the Court, the seat is eliminated. Since Congress can create new seats on the Court and eliminate seats not currently occupied, it can also set a schedule for doing so.
One potential question is whether an early departure from the Court poses issues with respect to the president’s appointment power, because under most versions of this proposal the president would not have an immediate opportunity to appoint a replacement. footnote9_eleZWmzrlrU2 9 U.S. Const. art. II, § 2. Critically, however, under this circumstance no vacancy would exist for the president to fill: the existing seat would be eliminated upon the justice’s departure and a new seat would be created only according to the schedule set by Congress.
Likewise, Congress has the power to establish 18-year terms for justices so long as the justices continue to “hold their Offices during good Behaviour” after leaving active service, as required by Article III. The active/senior justice model comports with the Good Behavior Clause by providing that after 18 years, justices retain their judicial offices as senior justices with modified responsibilities.
The active/senior justice model is similar to a long-standing system of senior judges that is more than a century old and that has applied to Supreme Court justices since 1937. The main difference is that under the reform, justices take senior status pursuant to a fixed schedule rather than at a time of their choosing. This distinction has constitutional relevance, however, only if being required to take senior status is akin to being forced from office, such that the justices would no longer “hold their Offices during good Behaviour.” footnote10_uCtHtvXiPH4j 10 U.S. Const. art. III, § 1.
But the Supreme Court ruled nearly 90 years ago that senior judges continue to hold their judicial offices. In 1934, in Booth v. United States, the Court considered a predecessor of the senior judge statute that applied to lower court judges. The Court held that assuming senior status does not constitute a removal from office. Considering a challenge by a senior judge to a reduction in salary, the Court concluded that senior judges could not have their salaries reduced because a senior judge “does not surrender his commission, but continues to act under it.” footnote11_o64vUhtllnUc 11 Booth v. United States, 291 U.S. 339, 350–51 (1934). In other words, senior judges remain judges within the meaning of Article III. The Court explained that “Congress may lighten judicial duties, though it is without power to abolish the office or to diminish the compensation appertaining to it.” footnote12_gDWb38ptOsm8 12 Booth, 291 U.S. at 351, 354.
Although Booth concerned lower court judges, its reasoning applies with equal force to Supreme Court justices because Article III’s Good Behavior Clause applies to “Judges, both of the supreme and inferior Courts.” footnote13_aTMkLBmu7bF6 13 U.S. Const. art. III, § 1. While imposing a schedule for when justices take senior status leaves them with less discretion over the content of their dockets, it is Congress, not the justices themselves, that holds the power to define the contours of justices’ dockets and duties.
While the Supreme Court has not squarely addressed the constitutionality of senior judges since Booth, it has affirmed its underlying rationale. In Nguyen v. United States, a 2003 case challenging the constitutionality of an appellate panel consisting of an active circuit judge, a senior circuit judge, and an Article IV territorial judge from the Mariana Islands, the Supreme Court held that the panel lacked the authority to hear the appeal due to the presence of the Article IV judge. But in doing so, the Court confirmed that both the active and senior judge were, “of course, life-tenured Article III judges who serve during ‘good behavior’ for compensation that may not be diminished while in office.” footnote14_jgxeR55W1JYS 14 Nguyen v. United States, 539 U.S. 69, 72 (2003). Lower courts have also entertained challenges to the constitutionality of the senior judge system since Booth, including several in recent years. They have consistently held that the senior judge system is constitutional and that arguments to the contrary are without merit. footnote15_fMoeTLhWFxir 15 See Bank of N.Y. Melon v. Stafne, 824 F. App’x 536, 536 (9th Cir. 2020); Steckel v. Lurie, 185 F.2d 921, 925 (6th Cir. 1950); Hoang v. Bank of Am., N.A., No. C17–0874JLR, 2021 WL 615299, at *1 (W.D. Wash. Feb. 17, 2021), aff’d, 820 F. App’x 594, 595 (9th Cir. 2020); Rodgers v. Knight, No. 2:13–04033-CV-C-NKL, 2013 WL 12184288, at *1 (W.D. Mo. July 1, 2013), aff’d, 781 F.3d 932 (8th Cir. 2015); Ezor v. Yee, No. CV 22–840 JVS (AGR), 2023 WL 2554162, at *2 (C.D. Cal. Mar. 2, 2023); Stafne v. Burnside, No. C16–0753-JCC, 2022 WL 2073074, at *2 (W.D. Wash. June 9, 2022); Stafne v. Zilly, 337 F. Supp. 3d 1079, 1097–98 (W.D. Wash. 2018); Bluwav Sys., LLC v. Durney, No. 09–13878, 2012 WL 5392301, at *1 (E.D. Mich. Nov. 5, 2012). See also Hon. Betty Binns Fletcher, “A Response to Stras & Scott’s Are Senior Judges Unconstitutional?,” Cornell Law Review 92, no. 3 (2007): 523–32, https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3057&context=clr.
Moreover, there is a long-standing tradition of justices who have retired from active service sitting by designation on lower federal courts, including Justices Potter Stewart, Lewis F. Powell Jr., and Byron White and, in recent years, Justices O’Connor and Souter. footnote16_xdfHtYceL0jl 16 See E. Jon A. Gryskiewicz, “The Semi-Retirement of Senior Supreme Court Justices: Examining Their Service on the Courts of Appeals,” Seton Hall Circuit Review 11 (2015): 285–326, https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1144&context=circuit_review. Since 1937, retired justices have heard more than 1,300 cases while sitting as judges on the courts of appeal and district courts. footnote17_mSvH6PZn1fTo 17 Gryskiewicz, “The Semi-Retirement of Senior Supreme Court Justices,” 293–98. If it were the case that justices surrender their judicial office when they retire from active service on the Court, then the practice of justices sitting by designation would itself be unconstitutional. As the Court noted in Booth, “It is scarcely necessary to say that a retired judge’s judicial acts would be illegal unless he who performed them held the office of judge.” footnote18_rwvUDgpiW0YK 18 Booth, 291 U.S. at 350.
Some critics have objected to senior justices by suggesting that the Constitution creates a separate “office” of Supreme Court justice that is distinct from the office of lower court judge. footnote19_aygnnf7iZTeZ 19 Under this argument, Article III’s statement that “the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour” is read to imply that they will hold their respective offices during good behavior. Proponents of this argument further point to the Appointments Clause, which identifies “Judges of the supreme Court” as a category, and to a provision in Article I providing that the Chief Justice shall preside over impeachment trials. See Calabresi and Lindgren, “Term Limits,” 859–68; and Scott Bloomberg, “Reform Through Resignation: Why Chief Justice Roberts Should Resign (in 2023),” Iowa Law Review Online 106 (July 7, 2021): 30, https://ilr.law.uiowa.edu/sites/ilr.law.uiowa.edu/files/2022–11/Reform%20Through%20Resignation-%20Why%20Chief%20Justice%20Roberts%20Should%20Resign%20%28in%202023%29%20.pdf. According to this argument, in order to retain their office within the meaning of the Good Behavior Clause, justices must perform duties related to their Supreme Court office. But Congress has broad power to define the content of the office of a justice, including, as Booth recognized, to “lighten judicial duties” over the course of a judge’s tenure and, as Stuart recognized, to require justices to serve on lower courts. Indeed, under the current system, justices who have retired from active service can sit by designation on lower courts but are barred from sitting on the Supreme Court. footnote20_zKwmoBFSXMy0 20 28 U.S.C. § 371(e); 28 U.S.C. § 294(d). Notably, the active/senior justice model contemplates a much more significant role for senior justices: They would continue to hear Supreme Court cases when the Court is shorthanded due to a justice’s recusal or in the event of a premature departure from the bench. They would potentially also hear cases falling under the Court’s original jurisdiction.
To be sure, Congress could not “lighten” justices’ duties out of existence altogether such that they held office in name only. Nor could Congress single out an individual justice for lightened duties or target justices appointed by a president of a particular political party. But these actions are forbidden because they are assaults on the values of judicial independence enshrined in the Constitution’s structure. By contrast, the active/senior justice model targets no justice individually and does not impinge on the justices’ decisional independence.
Separately, some critics have objected to senior justice models on the theory that elevating an active justice to senior justice without a separate appointment violates the Constitution’s Appointments Clause. footnote21_aNc8Z1jBX03C 21 U.S. Const., art. II, § 2. However, under Supreme Court precedent, a change in duties does not require a new appointment so long as the new duties are sufficiently germane to those of the original position. This “germaneness” requirement under the Appointments Clause is quite broad. For example, in Weiss v. United States, the Court held that a commissioned military officer could be designated as a military judge without a separate appointment. footnote22_tcDDMyl5tvKW 22 Weiss v. United States, 510 U.S. 163 (1994). See also Presidential Commission, Final Report, 131. It is far from clear that prospectively changing justices’ duties implicates the Appointments Clause. Regardless, because federal law already authorizes retired justices to engage in the duties with which senior justices would be tasked under the active/senior justice model, it appears clear that a separate appointment is not required. footnote23_hlnzyjes6ZOO 23 Presidential Commission, Final Report, 131–32. Prior to serving as a U.S. senator, Josh Hawley endorsed the adoption of Supreme Court term limits by statute because “Article III demands that judges be appointed for life, but it does not necessarily require that Supreme Court justices serve for life — provided they remain judges when not on the Court.” Joshua D. Hawley, “The Most Dangerous Branch,” National Affairs, July 2012, https://www.nationalaffairs.com/publications/detail/the-most-dangerous-branch.
Finally, some critics point to historical practice in objecting to the active/senior justice model. But while it is true that justices have been able to sit in active service until they choose to step down, the fact that earlier generations did not see a need to restructure “good behavior” tenure into active service and senior service does not mean that Congress lacks the authority to do so today. The Constitution leaves Congress with wide latitude to define the Court’s structure and the justices’ duties as required by the needs of the day, constrained by structural protections that preserve judicial independence. As recognized by dozens of prominent constitutional scholars, the active/senior justice model is fully consistent with the Constitution’s text and structure, as well as with longstanding precedent about the operation of senior judges. footnote24_h8mxG1V7goKr 24 In 2020, 29 professors signed an open letter supporting a similar statutory proposal. See Fix the Court, “Open Letter of Law Professors Supporting H.R. 8424,” October 23, 2020, https://fixthecourt.com/wp-content/uploads/2020/10/Endorsers-of-H.R.-8424–10.23.20f.pdf. In 2009, 31 scholars sent a letter to then vice president Biden, then attorney general Holder, and the Senate and House Judiciary Committees containing four proposals to include in a potential Judiciary Act of 2009. Among those proposals was one for 18-year terms and regularized appointments. See Eliza Presson, “Group’s Proposals for Supreme Court Reform,” SCOTUSblog, February 16, 2009, https://www.scotusblog.com/2009/02/groups-proposals-for-supreme-court-reform. And in 2005, 45 law professors “in principle” supported another, similar statutory proposal. See Paul D. Carrington and Roger C. Cramton, “The Supreme Court Renewal Act: A Return to Basic Principles,” July 5, 2005, https://perma.cc/D5V3-EXKF. See also Roosevelt, “Court Reform and the Biden Commission”; Michael C. Blumm, Kate Flanagan, and Annamarie White, “Right-Sizing the Supreme Court: A History of Congressional Changes,” Case Western Reserve Law Review 72, no. 1 (2021): 10n4, https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=4942&context=caselrev; Balkin, “Don’t Pack the Court”; Roger C. Cramton, “Constitutionality of Reforming the Supreme Court by Statute” in Reforming the Court: Term Limits for Supreme Court Justices, 359–60; Cramton, “Reforming the Supreme Court”; Paul D. Carrington, “Checks and Balances: Congress and the Federal Courts” in Reforming the Court: Term Limits for Supreme Court Justices, 138–39; Levinson, “Life Tenure and the Supreme Court; Judith Resnik, “Judicial Selection and Democratic Theory: Demand, Supply, and Life-Tenure,” Cardozo Law Review 26 (January 2005): 640–41, https://www.researchgate.net/publication/228177231_Judicial_Selection_and_Democratic_Theory_Demand_Supply_and_Life-Tenure; and Presidential Commission, In Support of a Congressional Statute (written testimony, Amar).
As Hamilton writes in Federalist 78, good-behavior tenure “is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.” See also Sanford Levinson, “Life Tenure and the Supreme Court: What Is to Be Done?,” in Reforming the Court: Term Limits for Supreme Court Justices, 379.
