Supreme Court term limits would increase political tensions around justices, not ease them

Here we go again. The third Supreme Court confirmation battle in less than four years has begun. Court watchers and policymakers have speculated about this moment for months, as Justice Ruth Bader-Ginsburg’s health scares graced headlines until her passing last month. 

The legendary justice had not even been laid to rest before the partisan temperature surrounding her replacement and the confirmation process was white hot. And — as it goes in these moments — judicial experts are taking this opportunity to call for changes to the nation’s highest court. Last week, House Democrats introduced a bill supporting one of the more popular court reform proposals — term limits.

Although well-intentioned, term limits have a problem. Not only are they unconstitutional, but they will have the exact opposite result proponents wish for. More, term limits will ensure that court vacancies are inextricably tied to every presidential race and has the potential to create abrupt ideological shifts on the highest court, only increasing the political scrutiny. In other words, term limits will not lower the temperature around nominations, they will leave the country scorched.

Terms limits are unconstitutional 

Here is the gist of most plans: Supreme Court justices will serve staggered, 18-year terms, which will provide two vacancies each presidential term. The logic goes that once these vacancies become structured and routine, the political heat around these vacancies will dissipate. 

As mentioned above, the first problem is that such a plan is unconstitutional. Article III says that federal judges “hold their offices during good behavior.” This is universally understood to mean that federal judges have life tenure. As a result, to enact term limits, it is necessary to amend the Constitution. 

Aha! Some term limit proponents say. There is a workaround to this pesky constitutional obstacle. Some suggest that Article III’s description of “office” to mean any judicial office, not necessarily the Supreme Court. Therefore, once a justice’s 18-year term is up, a justice may retire or choose to continue serving on a lower federal court. 

This proposal, too, runs afoul of the Constitution. Article III makes a firm distinction between “supreme” and “inferior” courts. While the Constitution dictates “one supreme Court,” it gives Congress much more flexibility to “ordain and establish” other, lower federal courts. 

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Similarly, Article II sees the two offices differently. Under Article II, Section 2, the president has the power to nominate “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” Federal circuit and district judges fall under the “other Officers” title. This deliberate bifurcation suggests that the two judicial “offices” are quite different and have separate constitutional roles. Therefore, it is suspect that a justice can be compelled to abandon their seat by statute and take a lower judicial position once their 18-year term is up. If that were the case, Congress could easily remove the Chief Justice at any time and force him to become the ambassador of Denmark. 

The second problem is the canard that guaranteed vacancies every two years will somehow reduce the political turmoil around each Supreme Court confirmation. Regrettably, it would do the exact opposite. President Trump’s first term has been irregular in a number of ways, including the fact that he had the chance to nominate three Supreme Court justices so quickly. 

Eight Scalias or eight Ginsburgs

Yet term limits would regularize the process, and in turn tie two Supreme Court seats to every presidential cycle. A single two-term president could pick 44% of the court. If two presidents of the same party served three or four consecutive terms, an overwhelming majority of the court would quickly be ideologically one-sided. In the span of only a few years, a court of eight Scalias could turn to eight Ginsburgs. Certainly, the chance for such a dramatic ideological shift in the highest court would only put a greater spotlight on it during presidential elections and judicial confirmations. 

The potential for ideological ping-pong on our highest court could also damage our common law system. The legal doctrine of stare decisis, Chief Justice Roberts wrote last year, “requires us, absent special circumstances, to treat like cases alike.” He further explained the doctrine “is necessary to 'avoid an arbitrary discretion in the courts'” and distinguishes judicial decision-making from the “political and legislative process.” That process could quickly erode in a term-limited court. Even-handed and predictable legal results is an attribute, not a defect. Some laws are bad, but they should be changed by lawmakers. And a warning for those who wish to dramatically change public policies in courtrooms rather than legislative floors: The same court that can overturn Roe v. Wade can also cement it. 

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Finally, term limits do not solve today’s politicization. At best, it is a multi-decade plan to fully implement. Absent impeachment, today’s justices cannot be forced off the Court. And many of the Court’s youngest jurists may serve for 30 years or more. And when a regularized vacancy process finally does roll into place, what is to stop the Senate from not confirming a nominee to fill the vacancy? Go further. With 18-year terms, what is to stop a Senate refusing to hear four years’ worth of nominees, giving the next president potentially four open seats in just the first term? The Senate’s recent refusal to consider Merrick Garland’s 2016 nomination is just the groundwork for such shenanigans. 

Term limits are popular because they promise what it cannot attain — a way to depoliticize the courts. Still, we should not be dissuaded from trying to lower the political temperature around the judiciary. But we should find a better way to achieve it.

Anthony Marcum is a fellow for the Governance Project at the R Street Institute. Follow him on Twitter: @AnthonyWMarcum