Should there be a limit for how long a Supreme Court justice should be on the High Court? Many say, yes, justices shouldn’t keep their jobs indefinitely.
Polling on the matter shows that the American people agree with the idea that justices should be limited in how long they can serve — federal judges are, after all, the only branch of government where those who serve are not picked directly by the people.
One poll in 2018, in fact, found that as many as 78 percent of the American public wanted term limits for how long a justice could be on the Court. It’s not just an idea that’s popular in the public sphere, but academics are also saying it might be a better way to have things run.
Kermit Roosevelt, a law professor and constitutional expert at the University of Pennsylvania, and Ruth-Helen Vassilas, an associate with London’s Skadden, Arps, Slate, Meagher & Flom LLP, recently penned an opinion piece together at CNN regarding the subject. They proposed a limit of 18 years for each justice on the Court going forward that would allow a regular pattern for politicians and citizens alike to know when a vacancy may occur.
I was fortunate to be able to speak with Roosevelt and Vassilas about the matter. Below is a transcript of our conversation on why term limits for Supreme Court justices should be implemented…
Chris Walker: Why is there a need to limit how long a Supreme Court justice should be allowed to serve? What problems might this rectify?
Kermit Roosevelt: The main problem is that the Supreme Court is a powerful institution that weighs in on politically-charged issues, but its composition is determined by random chance, strategic behavior, and partisan hardball. Tying it to the ability of a party to win national elections would make much more sense.
Ruth-Helen Vassilas: While I am not questioning the qualifications of our current bench, life tenure may incentivize presidents to select the youngest candidate possible and overlook otherwise qualified candidates. Life tenure generates high stakes. If parties and presidents knew that each term would guarantee two appointments, it would reduce any tendency to exclude exceptional candidates for the sake of longevity.
CW: How long would you suggest, or have others suggested, a Supreme Court justice should serve, if tenure limits are to exist? Why is that amount of time considered the standard?
KR: The standard proposal is staggered 18-year terms so that each president gets two nominees per four-year term.
RV: Eighteen years is a substantial amount of time to serve, but not so long so as to eliminate worthy candidates who may be in their 60s, for example, and not long enough to risk creating a bench that does not reflect the views and sentiment of the nation.
CW: Would instituting limits require amending the Constitution?
KR: We think it wouldn’t.
RV: Term limits can be achieved by statute. The Constitution provides that federal judges and Supreme Court justices shall “hold office” during “good behavior” and retain their salaries throughout their tenure. Under our vision of term limits, justices would serve 18 years on the Supreme Court and then have the opportunity to serve the remainder of their tenure as district and circuit judges. U.S. law explicitly states that district and circuit court judges who take senior status do “retain the office.” Supreme Court Justices already can serve on lower courts by designation. To institute term limits, legislators need only pass a statute that aligns with our Constitution. The statute would assign senior status to our justices following an 18-year term, allow them to maintain their compensation “during their continuance in office” and ensure their judicial independence remains uncompromised.
CW: So, what might happen to justices after they exit the Court?
KR: They could stay on as senior justices and be available to serve if needed. Or they could sit as circuit judges, as many retired justices have done.
RV: All justices should be welcome, and indeed constitutionally entitled, to continue serving on lower federal courts for as long as they exhibit “good behavior.” Retirement should be an option, but never a constitutional requirement.
CW: Others have cautioned against instituting limits to how long one can serve on the Court, citing concerns that include a Court with higher turnover, which could result in radical changes and rulings from the court, including unstable decisions that could be overturned over and over again. Does that concern you, or how might you respond to such worries?
RV: The hope is that term limits would expand the pool of qualified candidates; bring more accountability to the process, in particular to the presidents who appoint the justices; and create a Supreme Court bench that more closely reflects the opinions and changing-tides of American society.
KR: Doctrinal instability is probably not a good thing. It makes the Court appear political. But a Court that’s pursuing a constitutional vision that’s far distant from the vision of the majority of the country and the political party that wins more presidential elections is a bad thing too, and that’s what the current system threatens us with.
RV: Supreme Court appointments would play a much bigger role in voters’ decision-making if each presidential term equates to two seat selections. This would bring more accountability to a president’s decision-making process, particularly for first-term presidents who will seek reelection.
With Supreme Court term limits, we could establish a stable appointment process and an institution somewhat more reflective of “we the people.”
KR: And as long as the Justices respect stare decisis, there shouldn’t be dramatic changes. If they care about the Court as an institution, they won’t yank the law back and forth just because membership shifts.