WASHINGTON – President Joe Biden’s commission to study structural revisions to the Supreme Court found one potential change both Democrats and Republicans have said they could support: implementing term limits for the justices, who currently have lifetime tenure.
Yet the bipartisan support among legal experts and the public for term limits isn’t catching on among elected officials on Capitol Hill who would be the starting point on any alterations to the makeup of the Supreme Court. Impatient liberals clamoring for change say enacting term limits would take far too long, while Republican lawmakers are loath to endorse changes they are characterizing as part of a broader effort from Democrats to politicize the judiciary.
The chief argument against term limits among Democratic lawmakers and others who have endorsed structural changes is that doing so may require a constitutional amendment – a process that is long, cumbersome and has not been successfully executed since 1992.
“It takes years to work through the state legislatures,” Sen. Elizabeth Warren, D-Mass., said in an interview. “We don’t have years when the Supreme Court is gutting voting rights, gutting union rights, gutting the equal protection clause and signaling that it’s going to overturn Roe.”
Warren is the most recent convert in the Senate in favor of Supreme Court expansion, one of only a few Democrats there who have explicitly endorsed structural changes to the court even as the recent oral arguments in Mississippi’s abortion ban have prompted many to reconsider their stance. In an op-ed in the Boston Globe this month, Warren argued that Republican maneuvering has essentially packed the Supreme Court in their favor, and that adding justices is necessary to rebalance it. Increasing the number of justices could be done through a statute, a far simpler process than passing an amendment.
Sen. Lindsey Graham, R-S.C., who led the Judiciary Committee for two years, had a concise answer to the concept of term limits for justices: “I don’t like it.”
“I like to have somebody as insulated from politics as possible,” Graham said. “I think the system has worked well. I don’t see a need to change it. The reason they’re talking about changing it is because, you know, Democrats lost elections, which have consequences.”
Democrats hotly dispute that they are the ones who have politicized the high court. They remain livid that, with nearly a year left in President Barack Obama’s term, then-Senate Majority Leader Mitch McConnell, R-Ky., refused to consider Merrick Garland’s nomination to fill the seat of Justice Antonin Scalia, who died in February 2016. Democrats were similarly enraged when McConnell pushed through the nomination of Amy Coney Barrett last year, even as voting was underway that eventually denied President Donald Trump a second term.
Those who support limiting the tenure of justices – 18 years is the length often mentioned – say doing so would ensure that the Supreme Court is broadly responsive to the outcome of elections over time and would make appointments of justices more predictable, according to the commission’s findings.
Most presidents have gotten one or two chances to name a justice to the Supreme Court, while others have had upward of four opportunities and others none at all – all determined by either fate or the choices of the justices themselves. But an 18-year tenure for justices would mean that each president, in one term, would have the chance to pick two members of the court once term limits are fully implemented. (A similar proposal, but for 12-year term limits, would allow for three per presidential term.)
It would also, according to term limit proponents, help ensure that no one justice has excessive influence over time. The commission took no formal position on term limits, but noted testimony from a group of Supreme Court practitioners who concluded that an 18-year term for justices “warrants serious consideration.”
Opponents of term limits think that they would harm the ability of justices to remain independent and raise questions about the Supreme Court’s legitimacy and judicial integrity.