A SCOTUS Seat Is a Lifetime Appointment. Could Term Limits Create a Fairer Court?
Almost immediately after the U.S. Supreme Court ruled on presidential immunity, former President Donald Trump lauded the decision, calling it a “big win for our constitution and democracy. Proud to be an American!”
President Joe Biden took a dimmer view. “No one is above the law,” he said in a statement, “not even the president of the United States. With today’s Supreme Court decision on presidential immunity, that fundamentally changed.”
In an ideological 6-3 split, the majority-conservative Court said a president is at least entitled to presumptive immunity from criminal prosecution for his official acts, expanding the limits of presidential power and potentially impacting the federal government’s election interference case against Trump.
The responses from Trump and Biden reflect an apparent disconnect between the Court and the current administration, as the Court issues decisions that seem to align more with Trump’s political objectives than Biden’s, owed in large part to Trump appointing three justices during his tenure.
Proponents of establishing term limits on the Court want that to change. Amid longtime calls from Democrats to reform the court, Biden marked his own most substantial push yet with last month’s op-ed, in which he touted term limits and an enforceable ethics code as sensible measures for the high Court.
“Not only have Supreme Court Justices become increasingly partisan, but it is also clear that they are out of step with modern life,” U.S. Rep. Ro Khanna, a California Democrat who sponsored a term-limits bill in 2020, told Democracy Docket in a statement. Term limits, he said, “will eliminate the arbitrary nature of Supreme Court vacancies by creating a regular, fair process.”
Why should the Court change more often?
A key reason Biden and others want term limits — specifically 18-year terms — is to ensure the bench changes with greater regularity. If each administration gets two appointees, instead of the number varying with each administration, depending on the justice, supporters say turnover will increase over time.
Justice Clarence Thomas, for instance, was appointed by President George H.W. Bush in 1991 and has served on the bench through six administrations.
“You don’t want the court to be just an extension of the Legislature,” said Gabe Roth, executive director of the nonprofit Fix the Court. “But I think the goal is to have a court that reflects what the country looks like and how the country feels about certain issues at certain times and not having [presidents] influence policy that long into the future.”
To be clear, the court maintains judicial independence and is not expected to advance a president’s agenda. But experts say the court’s makeup should to some extent reflect the administrations voters elect into power.
“If each president had an equal influence on the Court—if each president appointed two justices per four-year term, for instance—the Court would be 6-3 in favor of the Democrats,” Kermit Roosevelt III, a professor at the University of Pennsylvania Carey School of Law, wrote for Time. “We would have two Justices appointed by Biden, two by Trump, four by Obama, and one by George W. Bush.”
A majority-liberal court may have reached different outcomes on voting and abortion rights, the limits of federal power, and other matters decided by the court during Biden’s term. “It is this stark divergence between national elections and control of the Court that makes the current Court seem extreme and political,” Roosevelt wrote.
In July, for example, a Harvard expert on public perceptions of the Court said the immunity decision is unpopular with most Americans, citing an April survey showing that about “73% of respondents think the president should not have such immunity, with this number rising to 88% among Democrats. Even a majority of Republicans, 55%, share this view.”
One proposal reintroduced last year, co-sponsored by Khanna, would allow the president to nominate a Supreme Court justice in the first and third year of their presidency. Experts say a term-limits law should provide that the new system does not take effect until after the next presidential election.
“No matter which party you support,” Roth said, “I think it’s uncontroversial to say that the court has arrogated to itself more power than I think the founders aimed to give them. And that’s not how things should work in a democracy.”
De-politicizing the Court
Supporters of term limits say setting 18-year terms would also disincentivize judges to make political decisions about their own tenure, like when justices wait until certain administrations to retire, and it wouldn’t give presidents a disproportionate amount of appointments like Trump, for example, having more appointments than Obama (two) despite having served just one term.
“The current system enables Justices to strategically and politically time their resignations,” Yale Law professor Akhil Reed Amar wrote in a research article in support of term limits.
In her last few years on the court, the late Justice Ruth Bader Ginsburg defied calls to step down while Obama remained in office so that he could confirm a liberal-leaning justice. After Ginsburg’s death in September of 2020, Trump appointed Amy Coney Barrett, pushing the bench further right.
For some Democrats, the partisan quest for controlling the Court reached its lowest point in 2016, when Republicans blocked the confirmation of then-nominee Merrick Garland, appointed by Obama after Justice Antonin Scalia’s death. The seat was later filled by Trump, who selected Justice Neil Gorsuch.
“They falsely claimed the vacancy could not be filled during a presidential year,” Sen. Edward Markey (D-Mass.), who wants to expand the court, said at a press conference in July. “Then, in a head-spinning display of hypocrisy, when Ginsburg died in September of 2020, Senate Republicans and Donald Trump ran through the confirmation of Amy Coney Barrett before Election Day.”
In 2016, Senate Minority Leader Mitch McConnell (R-Ky.) said that because it’s an election year, the voters should be included in the process by electing the next president (who’ll choose the nominee). “Either way, our view is this: Give the people a voice.”
In Khanna’s proposal, the Senate would have 120 days after the nomination to hold a confirmation hearing, otherwise it would essentially waive its role in the process.
After Biden’s op-ed, McConnell said he was “disappointed” by Biden’s support for term limits. “This is a man who was chairman of the Judiciary Committee for a long time,” he told Punchbowl. “He absolutely knows what he recommended is unconstitutional, to try to limit the terms of the Supreme Court justices who under the Constitution are appointed for life.”
Critics have noted that limiting justices’ tenure could run afoul of the U.S. Constitution, which stipulates that federal judges “hold their office during good behavior” — widely interpreted as a lifetime appointment.
Proponents say this issue can be rectified by requiring future justices to take “senior status” after 18 years, meaning they would shift to another role, like an “emeritus” judge to be called in when needed, and not leave the court entirely. Court precedent supports the idea that a federal judge is still a judge, even if they’re serving in a reduced capacity, according to a 2023 study on term limits.
At a time when public confidence in the Court is plummeting, supporters of Court reform say the bench changing more frequently could combat the perception of justices appearing as “politicians in robes.”
“Having some sort of limit would cement the idea that in a democracy it’s the people who make the laws,” Roth said, “and the people who have the power.”