four years, the Court might become even more of an issue in electoral politics than it currently is. Presidential candidates might have even greater incentives to make promises about whom they will appoint, and presidential elections might increasingly appear to the public to also be elections of specific identified persons—now candidates—to the Supreme Court. In a highly polarized environment, it might be especially harmful to reinforce connections between the Court and presidential politics. Such an electoral process might change not just the public’s perception of the Court, but also how the Justices view themselves and behave, making the institution more partisan. Moreover, introducing term limits might reinforce the erroneous message that appointments to the Supreme Court are the spoils of politics or the property of a particular President or party. Relatedly, one critic of term limits worries that the Justices “will be Republican appointees or Democratic appointees in a more explicit sense than they are now,” and that some Justices “may … view their own roles in a manner a little more political and a little less law-like.”[27]
Second, opponents of term limits point out that if one of the failings of the current system is a bitterly partisan confirmation process, then prescribing yet more regular confirmation hearings, as term limits would, simply worsens an already bad situation. While there is sometimes the suggestion that eighteen-year terms might engender less partisanship than lifetime appointments, opponents of term limits think a reduction of such partisanship in the United States is unlikely given the underlying dynamics of the current confirmation process and the incentives of interest groups.[28]
Third, some commentators and scholars have also expressed concern that term limits (whether through constitutional amendment or by statute) would threaten the basic structural principle of judicial independence.[29] They argue that life tenure is essential to that independence, as evidenced in our longstanding historical practice. Opponents are not comforted by citations to foreign courts, or to the state supreme courts where judicial terms are renewable through different systems of election or reappointment. Opponents note that it is perilous to draw conclusions from systems that are so fundamentally different. They also argue that the federal system of life tenure is the gold standard for judicial independence.
Opponents of term limits further believe that even long, non-renewable terms could undermine judicial independence by virtue of the fact that at least some Justices would have to consider what they would do after their terms expire. Their plans for the future might affect either their performance as Justices or public perceptions of that performance. One might worry that a Justice who is eyeing future positions in government might try to curry favor with political constituencies, or that a Justice who is eyeing future positions in industry or at a law
