Yes, President Biden Has One Good Idea

O n Monday, President Joe Biden will resurface from his White House exile to unveil his plan to reshape the Supreme Court. The details aren’t known, but one of the items is likely to be a good idea: term limits for Supreme Court justices.

No doubt, several of Biden’s proposals will be rooted in his displeasure with the Court’s recent rulings on federal abortion rights, affirmative action in higher education, and gun regulations. But a term-limit rule — that would grandfather in current justices — is a reform that wouldn’t have any near-term effect on the composition of the Court.

The idea has drawn support from across the political spectrum.

A term-limit policy “would end what has become a poisonous process of picking a Supreme Court justice.” It would also “depoliticize the court and judicial selection, and thus promote the rule of law,” says Steven Calabresi, co-chairman of the board of directors of the Federalist Society. He is joined by Ilya Shapiro of the Manhattan Institute, who says that term limits “could help restore confidence in the confirmation process and eliminate public concerns about aging justices,” even though he acknowledges the awkward fact that if newly instituted term limits don’t apply to sitting justices, we would, for decades, have term-limited justices serving alongside life-tenured ones.

On the left, the Washington Post has editorialized that implementing term limits would blunt what it considers a dangerous effort to pack the Supreme Court and “would also eliminate the incentive for presidents to pick young and relatively inexperienced judges merely because they are likely to live longer.”

Even Chief Justice John Roberts once spoke out in favor of term limits. In a memo written when he served in the Reagan White House, Roberts wrote: “Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges. Both developments would, in my view, be healthy ones.”

Federal judges are the only federal employees whose service has no clear end date. Almost every state imposes some limit on the tenure of judges on its highest court. Only Rhode Island grants the justices of its highest court life tenure. Our federal bankruptcy and magistrate judges serve fixed terms. Our Founding Fathers did not limit the service of Supreme Court justices in order to ensure their independence. But that’s a relic of a time when the average life expectancy was 38. Today, it is more than twice that. It’s a good thing that modern medicine is extending everyone’s life, but the time has come to remove the incentives that make justices serve until they drop dead or go the way of Joe Biden.

Judges today usually retire only when they can ensure a philosophically compatible successor. This can result in judges physically or mentally staying past their “sell by” date. Three examples in just the past 50 years include Justices William O. Douglas, Thurgood Marshall, and Ruth Bader Ginsburg.

The tenure of federal judges is addressed in the Constitution, which states that “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.” This has been interpreted to mean that Supreme Court justices have life tenure — so a drawn-out effort to amend the Constitution would likely be needed to implement term limits. But the Constitution is silent on what is meant by “offices.” It doesn’t say that judges must remain at their original posts for life. One possible reform, therefore, which would preserve the Constitution’s guarantee of tenure during “good Behavior,” would be to transfer aging Supreme Court justices to one of the nation’s eleven appeals courts. Naturally, some younger justices would opt out of continued judicial service and turn to the private sector. For them, ethics regulations would have to be crafted to protect against conflicts of interest. Retired justices might be barred from working for corporations or other entities that were a part of any case they had heard while they were on the Supreme Court.

As is the case regarding term limits for the president and 43 of the 50 state governors, the purpose of the reform would be to pump fresh blood into the judiciary. A 2022 poll by the Associated Press found that more than two-thirds of voters favored Supreme Court term limits, including majorities of both Democrats and Republicans.

Returning our courts to their proper place in our constitutional framework is a tall order and one that wouldn’t be accomplished merely by abandoning life tenure for Supreme Court justices. But the idea is a sensible step, enjoys support from both conservative and liberal legal scholars, and just might give Congress the opportunity to prove to the American people that it’s still capable of bipartisan action.