IV. Enacting Term Limits through Statute
Members of the Commission are divided about whether Congress has the power under the Constitution to create the equivalent of term limits by statute. Some believe that a statutory solution is within Congress’s powers. Others believe that no statutory solution is constitutional, or that any statute would raise so many difficult constitutional and implementation questions that it would be unwise to proceed through statute. Opponents of term limits cite these complexities as reasons to eschew term limits altogether.
In this Part, we consider the primary statutory approach and two alternative approaches. In all three proposals, Presidents appoint new Justices in the first and third years of their terms in office. As noted in the introduction to this Chapter, we focus on these proposals to ground our analysis rather than to endorse these proposals over all others. In addition, because the Commissioners are divided as to whether it would be constitutional to implement term limits via statute, we offer what we take to be the best argument for each position but do not seek to resolve the matter. We also examine some of the prudential concerns arising from these proposals. If Congress were contemplating imposing term limits by statute, a constitutional amendment that simply specified the size of the Court might still be advisable, for the reasons discussed above.
The main focus of our analysis is the so-called Junior/Senior Justice proposal. It creates the functional equivalent of term limits by providing that, after eighteen years of service, Justices become Senior Justices and stop participating in the ordinary work of the Court. This proposal features elements common to other proposals that scholars and advocates have offered,[54] and the constitutional issues we discuss here are also common to those proposals. The two alternative solutions—the Original/Appellate Jurisdiction proposal and the Designated Justices proposal—attempt to address potential constitutional problems with the Junior/Senior Justice proposal, but they raise their own sets of constitutional issues.
In all three proposals, Justices would spend an eighteen-year nonrenewable term participating in the ordinary work of the Supreme Court. After that period, they would perform a different or a subsidiary set of duties.
A. The Junior and Senior Justices Proposal
In the Junior/Senior Justice proposal, Congress passes a statute that provides that, after eighteen years of service as a “Junior Justice” deciding cases, each Justice would assume
