The Supreme Court was designed to be independent from politics. But with increasingly hostile confirmation battles — that of Judge Brett Kavanaugh being a prime example — and inevitable partisan outrage following many of the Supreme Court’s decisions, it is becoming more difficult for the public to separate the two.
In an effort to re-establish this necessary divide, some have returned to a plan that has buoyed in popularity over the years: staggered, 18-year term limits for Supreme Court justices, resulting in an automatic open Supreme Court seat every two years — and guaranteeing two court vacancies each presidential term.
Proponents reason that more consistent, routine confirmations are more fair and would help lower the political temperature surrounding the court. They also note other potential benefits, including fewer politically minded retirements, the opportunity to select more senior and established jurists, and reversing the impact of longer life-expectancies on judicial tenures.
Yet assuming supporters of this option could gather the political support to amend the Constitution’s promise of life tenure “during good behavior” and devise a plan that led to a sensible transition between the current justices and the new term-limited nominees, there is another problem to consider: Eighteen-year term limits may well exacerbate the court’s politicization and create new problems.
Most critically, an 18-year term limit would make the Supreme Court an issue in every single campaign cycle. During the 2016 presidential campaign, both Donald Trump and Hillary Clinton promised judges who would vote their party’s preferred way. Nothing in our current politics suggests this trend will change in future elections. And with at least two justices on the line every presidential term, similar pledges would be forced on every future presidential candidate. Senate candidates would likewise be pressured to pledge their vote for only the most ideologically pure nominee.
After the campaign pledges and the president’s first Supreme Court nomination, there is still nothing to stop Senate machinations. What would prevent the Senate from refusing to confirm the president’s “guaranteed” nominees, for instance? As demonstrated during Merrick Garland’s failed nomination, this is not outside the realm of possibility. After all, some Senate Republicans promised to do just that under a Hillary Clinton presidency.
On the other hand, if the president and the Senate majority are of the same party, two Supreme Court seats would only be the floor. The ceiling could be much higher. Indeed, the proposed 18-year term limit fails to account for justices not finishing their full term, resulting in at least one unforeseen vacancy with at least one more coming down the pike. The resulting political uproar would be tremendous. Imagine the political upheaval if a president named three or more nominees in the span of 24 months? And if the president spent eight years in office, the number of nominees could easily become a majority of the Supreme Court.
There are several plausible scenarios leading to this result. Say a justice nears her 16th year on the Supreme Court under a president who shares her judicial philosophy, and a presidential election is around the corner. Knowing her days are numbered, what incentive does she have to stay on the court and risk not having a like-minded jurist replace her?
Similarly, life tenure gives justices a secure source of income and influence, leaving them with little incentive to step down early prior to retirement age. With term limits, justices will frequently have to leave office at a younger age, forcing them to plan for life after the Supreme Court and all the pressures and opportunities that follow. Like former presidents, they could make millions giving speeches about their time in service. And like many politicians, they could join elite firms and offer guidance based on their experiences behind the scenes. They could sign lucrative television contracts and become political commentators. They could even run for office. With new light at the end of the tunnel, there is little to stop justices from using their position on the Supreme Court to launch these post-judicial aspirations.
Because of these very real dangers, the other ancillary benefits associated with 18-year term limits do little to tip the scales in the plan’s favor. One common critique of life tenure, for example, is that justices today serve far longer than the Founding Fathers intended, whose lifespans were on average shorter. But general life expectancy has not neatly correlated with the historical length of service on the Supreme Court. Chief Justice John Marshall, for example, joined the Court in 1801 and served for 34 years on the bench. There are plenty of other examples of 18th- and 19th-century justices serving for decades.
The political temperature surrounding the court is certainly too high. We see it during bitterly partisan confirmation battles, raucous campaign rallies, and impassioned protests on the steps of the Supreme Court. The culprits responsible for turning up this heat are many, and the reforms needed to dial it down are likewise numerous. But 18-year term limits offer more peril than promise.
Anthony Marcum is a research associate for the nonprofit R Street Institute’s Governance Project.
