By Jessica Lieberman, Program Officer for American Institutions, Society, and the Public Good
The Supreme Court holds immense power in the American constitutional system. Initially viewed by the nation’s founders as the “least dangerous branch,” the Court has grown in importance throughout American history. It has also become increasingly controversial: a majority of Americans (51 percent) say they have little or no trust and confidence in the Court, and only one-third of Americans believe the justices do a good job of keeping their decisions free of politics. Views of the Court are increasingly divided on ideological lines.
One often-overlooked factor exacerbating these concerns is the fact that justices today live far longer—and thus serve far longer—than the framers are likely to have imagined. Judicial life tenure has ratcheted up the stakes of each new Supreme Court nomination and led to a wide range of undesirable outcomes.
To address these concerns, the American Academy’s bipartisan Commission on the Practice of Democratic Citizenship recommended moving the Court to a system of staggered, eighteen-year terms in its landmark 2020 report, Our Common Purpose: Reinventing American Democracy for the 21st Century. The Commission argued that this “would help move the Court toward a less partisan future, restoring its legitimacy as an independent arbiter of justice.”
Our Comon Purpose, however, left open key questions about how this reform would work in practice. Most important, it was unclear whether the reform could be implemented by Congress without a constitutional amendment. In 2022, the Academy convened a bipartisan working group of top constitutional scholars and political scientists to address these questions. In October 2023, the Academy released the group’s final publication, The Case for Supreme Court Term Limits, which lays out a comprehensive roadmap for reform that can be implemented by Congress.
The Trouble with Life Tenure
When the Constitution’s promise of life tenure “during good Behavior” was drafted, a potential justice could expect to live to approximately 63 years of age. Today, that number is 79. While the historical average Supreme Court term is approximately 18 years, justices appointed since 1990 have served on average 26.3 years, and a justice appointed today could reasonably expect to serve for three decades or more. Because terms are so long, vacancies have become increasingly rare, making the appointments process more contentious.
Life tenure creates other problems as well. Justices often try to time their retirements to ensure an ideologically aligned successor, reinforcing perceptions of the Court as a politically driven entity. Since vacancies that are not the result of strategic retirements arise through “actuarial luck of the draw,” some presidents are able to appoint multiple justices, while others appoint none at all. This can cause the Court to become misaligned with the preferences of the electorate, and it also creates a perception of unfairness. Finally, presidents face pressure to appoint justices who are young and who can therefore maximize their terms, thus systematically excluding our most experienced jurists from the nation’s highest bench.
The Constitution’s grant of judicial life tenure makes the United States unique among the world’s major democracies, which uniformly have either fixed terms or a mandatory retirement for judges on their top courts. Life tenure is rare domestically as well; Rhode Island is the only state with life tenure for its state supreme court.
Outlining A New Approach
The Academy’s U.S. Supreme Court Working Group proposes to remedy the problems created by life tenure through a system of regularized appointments. Under the proposal, future presidents would appoint two new justices during each presidential term, and a new justice would be added to the bench every two years. Justices would serve actively for eighteen years, after which they would remain in office but take “senior” status with an adjusted set of duties. Justices appointed prior to the enactment of the reform would not be impacted by the new system and would be able to remain in active status for as long as they are willing and able to do so. This would temporarily expand the Court, but it would ultimately stabilize at nine justices within just a few decades.
The publication uses the phrase “term limits” to describe this system, since that is how the reform is commonly known. However, the Working Group also makes clear that it would not actually limit the amount of time that justices hold their office. Instead, their proposal would merely alter the job duties associated with the role of Supreme Court justice over the course of a life term. The Working Group concluded that structuring the proposal in this way allows it to be implemented by statute without running afoul of the Constitution’s Good Behavior Clause.
The Working Group also considered various complications that could interrupt the regularity of the system, such as the Senate reaching an impasse in the judicial confirmation process. Giving presidents flexibility regarding the timing of their nominations may help to prevent this; a president could choose the most opportune window within her term to maximize the chance of a successful confirmation. The publication also recommends amending the Senate rules to require a vote on nominations of Supreme Court justices within a reasonable time but does not recommend vacancy appointments or default approval should a vote fail to be held.
In the event of an unexpected vacancy on the Court, a new justice would be appointed to fill just the remainder of the term at issue. Future chief justices would be selected either through a seniority system or by a vote of the sitting justices, thus ensuring that every president has an equal chance of appointing a justice to this key role.
Launching the New Publication
On October 25, 2023, the American Academy and the Edward M. Kennedy Institute for the Senate cohosted an event to celebrate the release of the new publication. The event, “The Legislative Path to Supreme Court Reform,” featured a discussion with Academy members Judge Patti Saris (U.S. District Court for the District of Massachusetts), Professor Akhil Reed Amar (Yale University), Professor Charles Fried (Harvard Law School), and Kimberly Atkins Stohr (The Boston Globe). Gabe Roth (Fix the Court) also joined the panel.
The publication and launch event have generated a lot of interest and discussion, including news articles in Reuters, Forbes, and the popular legal trade publication Law 360. Staff in the Academy’s American Institutions, Society, and the Public Good program area are continuing to promote the Working Group’s proposal, which represents a major step forward in the Academy’s efforts to advance the recommendations in the Our Common Purpose report.
The Academy would like to thank the following organizations and individuals for their support of the Academy’s ongoing work to advance the Our Common Purpose recommendations: S. D. Bechtel, Jr. Foundation, the Rockefeller Brothers Fund, the John S. and James L. Knight Foundation, the William and Flora Hewlett Foundation, the Ford Foundation, the Conrad N. Hilton Foundation, the Suzanne Nora Johnson and David G. Johnson Foundation, the Clary Family Charitable Fund, Alan and Lauren Dachs, Sara Lee Schupf and the Lubin Family Foundation, Joan and Irwin Jacobs, David M. Rubenstein, and Patti Saris.
To read more about Our Common Purpose and The Case for Supreme Court Term Limits, please visit the Academy’s website.