After a series of highly conservative decisions and ethics controversies, President Biden and Vice President Kamala Harris have been eagerly calling for term limits for Supreme Court justices. While this is clearly only motivated by the fact that the conservative majority has been foiling progressive plans, some form of a term limit is prudent.
The justification commonly offered in favor of lifetime appointments is that Supreme Court justices should be insulated from political pressure by not having to worry about reelection. The hope here is that this would allow justices to faithfully uphold the constitution. We’ve seen that this is clearly not the case. Justices are nominated according to how well they are expected to enact the will of the appointing party, and as has been demonstrated, they do so quite reliably.
Political pressure is not the only thing that can cause judges to become political. Financial and ideological factors are more than enough to motivate judges to rule impartially. None of our current justices have been apolitical and they all typically vote according to what is aligned with the party that nominated them.
Without term limits, unless a justice were to do something up to now unheard of, there are no consequences for wielding their tremendous power irresponsibly. Even now, Justice Thomas has been receiving lavish gifts including yacht trips. Thomas also failed to recuse himself from cases where a conflict of interest existed. Late Justice Ruth Bader Ginsburg was also guilty of such corruption. There have been no consequences and no impeachment.
Our leaders need consequences to act right. Our hope that a lifetime appointment would cause justices to be impartial and apolitical was a naive one – this has not played out as expected.
Term limit proposals typically range from 15-25 years. This is meant to balance out the concerns with insulating justices and at least an attempt to uphold judicial independence. The problem with term limits is precisely that they will likely still have to be decades long. This will not allow us to quickly remove judges acting in bad faith. 18 years is plenty of time to cause damage.
Some have also rightly pointed out that this would motivate justices to decide in a way that helps them secure a position in government or corporations once their term expires. The following proposal doesn’t suffer from these concerns.
Instead of outright term limits, we should give the office of the presidency the power to remove one to two justices and replace them. The decision should still be a nomination confirmed by Congress. This allows a more efficient mechanism to remove bad justices, and since the selection is done by a freshly elected president, it better aligns with the will of the people at the time as many others have noted.
Perhaps equally important, this would discourage supreme court justices from straying too far to either extreme. This is because the extreme, ideologically motivated justices would be the first to be targeted by the next administration. While some commenters have voiced opposition to such a system on the grounds of it imperiling judicial independence, the entire purpose of judicial independence is that, ideally judges will rule according to the letter of the law and properly grounded judicial discretion. By disincentivizing judicial activism, we are securing this very outcome.
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Much of the resistance to SCOTUS reform stems from the claim that term limits for supreme court justices is clearly unconstitutional. It would be unconstitutional if Congress attempted to enact this level of SCOTUS reform by merely passing a statute. The right way forward would be through constitutional amendment. The constitutionality of term limits is not an objection when it pertains to the executive and legislative branches attempting to amend the constitution. Admittedly, the prospects for such a move are bleak.
Harris and Biden are clearly only pushing for term limits because the Supreme Court is currently stacked with conservatives and the proposal is politically beneficial to them. We can be certain that if it was stacked with progressives, they would not be singing the same tune. We can also be sure that if that were the case, Republicans would be the ones calling for term limits.
There’s honestly not a whole lot to see here. Despite SCOTUS reform being entirely warranted, an amendment is unlikely to happen – it’s just politicians doing politician stuff.
Rafael Perez is a doctoral candidate in philosophy at the University of Rochester. You can reach him at rafaelperezocregister@gmail.com.
