After Roe’s overthrow, Americans demand Supreme Court term limits


Following the landmark Supreme Court decision in Dobbs v. Jackson Women’s Health Organization reversing half a century of abortion rights under Roe v. Wade, nearly two-thirds of Americans want fundamental court reform, particularly term limits for Supreme Court justices.

Indeed, on July 25, 2022, Democrats introduced a bill that would allow a new judge to sit every two years and spend 18 years on active duty.

The majority that overthrew Roe was only possible because of the current system in which judges serve for life and are therefore able to choose when and if they should step down.

Justice Amy Coney Barrett owes her seat to Justice Ruth Bader Ginsburg’s refusal to retire under a Democratic president and her subsequent death under a Republican.

Judge Brett Kavanaugh is on the court due to Reagan-appointed Judge Anthony Kennedy’s decision to step down under a GOP administration. Justice Neil Gorsuch was appointed after conservative Justice Antonin Scalia died after President Donald Trump took office.

The author of the opinion in Dobbs, Judge Samuel Alito, took his seat when Republican Judge Sandra Day O’Connor elected to leave under President George W. Bush.

Justice Clarence Thomas – the court’s Tory majority leader – has sat on the High Court for more than three decades and is only there because liberal icon Justice Thurgood Marshall refused to retire under a president Democrat and subsequently died with a Republican in office.

All federal judges in the United States, including Supreme Court justices, are appointed for life.

Under Article 3 of the Constitution, judges cannot be forced to resign against their will, except in cases of dismissal. This provision, which followed Britain’s precedent, aims to ensure judicial independence that allows judges to make decisions based on their understanding of the law – free from political, social and electoral influence.

Our extensive research on the Supreme Court shows that the life term, while well-intentioned, has had unintended consequences.

This distorts the workings of the confirmation process and judicial decision-making and causes judges who wish to retire to behave like political operatives.

Problems with the lifetime mandate

Life tenure has motivated presidents to choose increasingly younger judges.

In the post-World War II era, presidents generally forgo appointing lawyers in their 60s, who would bring great experience, and instead appoint judges in their 40s or 50s, who could sit on the court. for many decades.

Justice Ruth Bader Ginsburg.
Brooks Kraft LLC/Corbis via Getty Images

And they do.

When Thomas was nominated at age 43 by President George HW Bush in 1991, he said he would serve for 43 years. There are still a dozen years before his promise is fulfilled, if he chooses to keep it.

Partisan issues

Judges change over their decades on the bench, research shows.

Judges who, at the time of their confirmation, espoused views reflecting the general public, the Senate, and the president who appointed them tend to drift away from those preferences over time. They become more ideological, focused on enshrining their own political preferences in law.

The political preferences of other Americans tend to be stable throughout their lives.

The consequence is that Supreme Court justices may no longer reflect the America they preside over.

This can be problematic.

If the court regularly strays too far from the public’s values, the public may reject its dictates by refusing to follow the court’s decisions. The Supreme Court relies on the public’s trust to maintain its legitimacy. In addition to public resistance to its decisions, if the court lost its legitimacy, lower court judges and actors in the legislative and executive branches might resist the implementation of the court’s decisions.

Lifetime tenure has also turned Supreme Court staffing into an increasingly partisan process, politicizing one of the nation’s most powerful institutions.

In the 1980s and 1990s, Supreme Court nominees could generally expect broad bipartisan support in the Senate. Today, judicial confirmation votes are almost strictly within party lines.

Public support for judicial candidates is also shaped by partisanship. Simply put, Democrats are much more supportive of candidates nominated by Democratic presidents, and Republicans are much more supportive of candidates nominated by Republican presidents.

Lifetime tenure can turn supposedly independent judges into political players trying to time their departures to secure their preferred successors – and that may have factored into Justice Stephen Breyer’s decision this year under President Joe Biden, a Democrat.

Biden named Judge Ketanji Brown Jackson, one of Breyer’s former clerks, to replace him.

Supreme Court Justice Anthony Kennedy receives a medal.
Justice Anthony Kennedy receives the 2019 Medal of Freedom from Justice Neil Gorsuch.
William Thomas Cain/Getty Images

The proposed solution

Many Supreme Court pundits have coalesced around a solution to these problems: staggered 18-year terms with a vacancy automatically occurring every two years in non-election years.

This system would promote judicial legitimacy, they argue, by taking departure decisions out of the hands of judges.

This would help prevent the court from becoming a campaign issue, as there would be no more vacancies during election years. Indeed, even if a judge died during an election year, a lower court judge could be temporarily appointed as a replacement. Term limits would also preserve judicial independence by shielding the court from political calls to fundamentally change the institution.

Partisanship would still taint the selection and confirmation of justices by the President and the Senate, and ideological extremists could still reach the Supreme Court. But they would be limited to 18-year terms.

Introduce life tenure

The United States Supreme Court is one of the few high courts in the world whose members are appointed for life.

Almost all democratic countries have either fixed terms or mandatory retirement ages for their top judges, including the UK.

With the exception of Rhode Island, all U.S. states either have mandatory retirement ages or let voters choose when judges leave the bench in judicial elections.

Even before Dobbs, polls have consistently shown that a large bipartisan majority of Americans support ending life terms for Supreme Court justices.

The view comes amid reports of an erosion of public trust as the court routinely hands out partisan rulings on the day’s most contentious issues.

Although the justices’ ideology has long influenced Supreme Court decisions, today’s court is unusual in that all conservative justices are Republicans and all liberal justices are Democrats. In the past, it was not uncommon to have liberal-leaning judges appointed by Republican presidents and conservative-leaning judges appointed by Democratic presidents.

In April 2021, President Biden formed a committee to review Supreme Court reform, including term-limited justices.

Some argue that ending the judges’ life terms would require a constitutional amendment requiring the approval of two-thirds of both houses of Congress and three-quarters of the US states. But there is a way to enact term limits without amendment.

The Constitution does not speak of “life term” as such. It only states that judges serve “during good conduct” and does not specify what type of work the judges will do.

As a result, ordinary legislation – such as that introduced this week – could be passed by a majority of both houses of Congress, which would require judges to assume “senior status” at the end of their 18-year terms.

Senior status is already an option for judges who are eligible for it and wish to retire from their Supreme Court duties. Senior status allows them to either retire or sit in a lower court with undiminished pay for the rest of their careers.

According to these supporters, all that is needed is a change in the existing retirement law which requires senior status after 18 years in the field.

And while there are questions about whether term limits by law are constitutional, or whether the Supreme Court justices who would be affected by them are the proper body to make such a decision, the bigger question broad is whether there is or will be the political will in Congress to enact them.

This story has been updated from the original version published on July 6, 2021.

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