The solution to the Supreme Court problem

Honestly, ever since Rick “I will tell you, it is three agencies of government when I get there that are gone. Commerce, Education, and the – what’s the third one there?” advocated for fixed 18-year Supreme Court terms, one up every two years, in his 2012 campaign, I have been a big fan.  It just makes so much sense on so many levels.  Recently Brookings released a report making a case for this plan and they address, legal, constitutional, political, court legitimacy, issues, etc.  It’s a very thorough and very compelling argument.  Most notable, I think, is they make a really strong case that this can be done through Congressional Act, not Constitutional Amendment.  The whole thing is worth a read (or a good skim), but here’s the key details in the Intro:

Today’s Supreme Court has assumed a degree of power and importance that would have been unrecognizable in the founding era.footnote1_yyi5o7o1 A recent cascade of ethics scandals has laid bare a system in which justices wield tremendous power for decades with little accountability,footnote2_oawh5jp2 while the Court’s rulings are increasingly unmoored from democratic values and the principle of judicial restraint.footnote3_z4e1gqb3 At the same time, polarization among the political parties and the justices themselves has dramatically increased the partisan stakes of the confirmation process, leading to a broken system.footnote4_axf188o4 Public trust in the Court is at a historical low.footnote5_86nh7fr5

For all these reasons, there are growing calls for reform. Proposals range from creating an ethics code to expanding the Court to stripping its jurisdiction. One of the most popular options would also be among the most transformative: establishing 18-year terms and regularized appointments for justices. Under this system, justices would sit in staggered terms of active service on the Court, such that a new vacancy would open every two years. Each president would have two, and only two, appointments during a four-year term.

This paper explains how such a reform would work, why it would bolster the Court’s legitimacy, and how to transition from the current system. It also discusses how the core elements of this reform could be adopted by statute, consistent with the Constitution, by establishing the role of “senior justice.” Among other things, senior justices would hear cases by designation on the lower courts, step in to hear cases on the Supreme Court in the event of a recusal or unexpected vacancy, and assist with the management and administration of the federal courts. This framework is similar to the existing system of senior judges that has been in place for more than a century and has applied to the justices since 1937.footnote6_rgdmbi96 However, rather than leave the timing of senior status up to the justices’ discretion, under this reform Congress would create a schedule by which justices assume senior status automatically after 18 years of active service on the Court.

The case for reform is compelling. On average, justices today sit on the bench for more than a decade longer than their predecessors did as recently as the 1960s.footnote7_2t3psda7 Several justices now on the Court are likely to hold office over as many as nine presidential terms. Unbounded tenure allows a single justice to shape the direction of the law for generations, without regard for the evolving views and composition of the electorate. It puts justices in an elite and unaccountable bubble for decades. No other major democracy in the world provides life tenure for high court judges who hear constitutional cases.footnote8_sne3e7w8

With today’s intense ideological polarization, every Supreme Court vacancy also takes on monumental stakes. Exercises of raw power have replaced long-established constitutional norms, upending the confirmation process.footnote9_lbp3wn89 This constitutional hardballfootnote10_aqu6um110 was illustrated most notoriously when Republican senators refused to consider President Barack Obama’s March 2016 nomination of Merrick Garland, claiming that it was too close to the presidential election, only to rush through a vote for Amy Coney Barrett in October 2020, when early voting in that year’s presidential election had already started.

One result of these dynamics has been that presidents have had starkly disparate imprints on the Court. President Donald Trump appointed three justices in four years, whereas Presidents Bill Clinton, George W. Bush, and Barack Obama each appointed two justices in eight years. This wide variation, as well as its impact on the development of American law, is impossible to square with principles of democratic legitimacy.

By contrast, with 18-year active terms and regularized appointments, every president would have an equal imprint on the Court during a four-year term. Such a system would enhance the democratic link between the Court and the public, making the institution more reflective of changing public values while preserving judicial independence.

This reform would also encourage a better-functioning and less politically charged confirmation process. Shorter terms would lower the stakes of each nomination, while regularized appointments would both encourage compromise and allow for public accountability in the event of confirmation impasses. Regularized appointments would also eliminate the destabilizing impact of late-term vacancies because an unexpected death or retirement would not create a new seat to fill; instead, a senior justice would temporarily step in. And this reform would ensure that no individual holds largely unchecked power for decades at a time.

Broad swaths of Americans support term limits for justices. Since 2022, several polls have found that more than two-thirds of the public are in favor of this reform, including more than three-quarters of Democrats, two-thirds of independents, and more than half of Republicans. This bipartisan support is long-standing: since at least 2014, polls have consistently shown supermajority support for term limits (see appendix).

A broad array of scholars likewise support term limits. When the National Constitution Center convened separate groups of conservative and progressive scholars in 2020 to draft their ideal constitutions, both proposed 18-year terms.footnote11_5u47ruu11 The Presidential Commission on the Supreme Court, which was created by President Joe Biden to evaluate options for Supreme Court reform, described term limits as enjoying “considerable, bipartisan support.”footnote12_oh7xfwd12

The Constitution gives Congress wide latitude to determine the Supreme Court’s structure and responsibilities. Congress should use its power now to reform the Supreme Court.