Presidential Commission on the Supreme Court of the United States Final Report/Chapter 3
Chapter 3: Term Limits
Among the proposals for reforming the Supreme Court, non-renewable limited terms—or “term limits”—for Supreme Court Justices have enjoyed considerable, bipartisan support. Advocacy groups, nonprofits, and membership organizations have expressed their support for term limits. In testimony before the Commission, a bipartisan group of experienced Supreme Court practitioners concluded that an eighteen-year non-renewable term “warrants serious consideration.”[1] Major think tanks and their leaders have also endorsed the concept,[2] as have both liberal and conservative constitutional scholars.[3] When the National Constitution Center organized separate groups of “conservative” scholars and “progressive” scholars to draft their own proposals for improving the Constitution, both groups concluded that Supreme Court Justices should be limited to eighteen-year terms.[4] Yet other scholars and commentators have questioned the idea of altering the system of life tenure,[5] which has been in place since the Constitution established the Supreme Court and the judicial power.
This Chapter considers the full range of debate over term limits and addresses numerous design questions that policymakers would need to take into account if they were to develop such a system, including the question of whether implementation would require constitutional amendment or could be achieved by statute. Consistent with its charge, the Commission does not take a position on whether or how term limits ought to be implemented but rather seeks to define and inform the debate over these questions.
Part I presents a series of arguments for term limits, explaining how, in the view of proponents, term limits would enable a regularized system of appointments to the Court that would preserve the value of judicial independence, make it more likely all Justices would serve for roughly equal numbers of years, and ensure that the Court’s membership would be broadly responsive to the outcome of democratic elections over time. Part II then sets out a series of objections to term limits and articulates the harms opponents of the proposal believe it might have on judicial independence and legitimacy. In Part III, we consider the design questions presented by a constitutional amendment that would institute a system of term limits. In Part IV, we consider whether and how such a system would be achievable by statute. Throughout Parts III and IV, we consider questions about the design of a system of limits, such as the length of Supreme Court Justices’ terms, the number of appointments each President should be able to make in four years’ time, and how transitioning to a term-limited system would be accomplished. We conclude in Parts V and VI by addressing some additional concerns: first, the potential impasse in the Senate’s confirmation process that would stymie a new system of term limits; second, the possibility that the adoption of term limits through statute would invite further intervention in the judiciary by Congress.
I. The Justifications for Term Limits
U.S. Supreme Court Justices have always had life tenure. But as proponents of term limits point out, life tenure is virtually unique to the U.S. federal judiciary. Defined terms for high court justices are commonplace at the state level. Since the Founding, states have decidedly moved away from life tenure for justices of their highest courts. Thirty-one states and the District of Columbia have some form of mandatory retirement,[6] with the majority of states setting the retirement age at 70.[7] Almost all states also establish terms for high court justices, ranging from six to fifteen years. Though these terms are renewable through elections in many states and reappointment in others, mandatory retirement applies in the majority of such systems. Rhode Island is the only state that currently has neither term limits nor a mandatory retirement age for its supreme court justices.[8]
The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term limit for its high court Justices.[9] Among the world’s democracies, at least 27 have term limits for their constitutional courts. And those that do not have term limits, such as the Supreme Court of the United Kingdom, typically impose age limits.[10] In light of this contrast, one scholar who testified before the Commission opined that, “were we writing the United States Constitution anew, there is no way we would adopt the particular institutional structure that we have for judicial tenure. No other country has true lifetime tenure for its justices, and for good reason.”[11]
In the view of proponents of term limits, the existing system lacks adequate justification beyond the fact that it has always been in place. Currently, the number of appointments available to a President can vary greatly because of random chance; when a vacancy arises depends on when Justices leave the bench due to illness or death, or when they themselves choose to retire. As elaborated in more detail below, some Presidents are able to make three (or more) appointments in a term while others make none. These differences in opportunities, term limits proponents argue, serve no obvious structural purpose.
Proponents of term limits argue that regularizing the appointments process would address these arbitrary consequences of life tenure by making judicial appointments more predictable and the composition of the U.S. Supreme Court more rationally related to the outcome of democratic elections over time. Proposals for staggered eighteen-year terms, for example, discussed in detail in Parts III and IV, would ensure that all Presidents have the opportunity to appoint two Justices to the Supreme Court in each term they serve. This predictability, proponents argue, would strike a more appropriate balance than the current system between two important features of our constitutional system of checks and balances: judicial independence on the one hand and long-term responsiveness of the judiciary to our democratic system of representation on the other.
By providing for tenure during “good Behaviour,” Article III of the Constitution provides judges with independence from direct and inappropriate external pressures and political influence when they interpret laws, review executive actions and administrative regulations, and consider the constitutionality of state and federal legislation.[12] Article II of the Constitution authorizes the elected branches to affect the composition of the judiciary through appointments over time; the Constitution gives the President and Senate power over appointments to the federal judiciary, and it gives Congress power over the structure and jurisdiction of the federal courts. Proponents of term limits emphasize that the influence of elections on the composition of the Court and its work is thus indirect, but that it is nevertheless an important element of the constitutional system. From the perspective of those who urge term limits, these various provisions of the Constitution aim to make the individual members of the judiciary independent at any given point in time, but the composition of the judiciary as a whole responsive over time to the people’s will, as expressed through its electoral decisions about who occupies the presidency and the Senate.
Proponents of term limits contend that the reform would better strike this balance than the current system in two respects. Long fixed terms, such as terms of eighteen years, coupled with post-service guarantees of financial security, would insulate individual Justices from political pressure and financial temptation and function as effectively as life tenure to safeguard judicial independence. At the same time, such fixed terms enable democratic majorities, as reflected in who is elected to the presidency and the Senate, to have the same or a roughly equal opportunity to influence who sits on the Supreme Court through new nominations—an objective that is poorly served by the current system of life tenure. Relatedly, proponents stress, lifetime tenure does not comport with the ideal of limited government authority. The nine individuals who sit on the Supreme Court wield extraordinary power over critical social and political questions, often for several decades. Though judicial independence requires them to be insulated from the same forms of accountability imposed on the political branches, life tenure arguably arrogates too much power to single individuals.
Proponents of term limits caution that one should not confuse the argument that the Court’s composition should reflect electoral outcomes over time with a claim that Presidents have a right to make the Supreme Court generate a particular set of results. In our constitutional system, judges and Justices are not and should not be considered the mere representatives of political parties or the creatures of a particular President, and the argument for term limits does not rest on such assumptions. Moreover, Presidents may appoint Justices for many reasons other than the hope or expectation that the Justice will support the President’s particular policy agenda or constitutional philosophy. Presidents may wish to achieve geographic or demographic diversity on the Court, attract new voters through the selection of a nominee, or choose a Justice with a particular set of professional experiences. And history shows that Presidents cannot necessarily predict the path a Justice will pursue; Justices often confront new issues in contexts quite different from the circumstances in which they were appointed. Thus, the argument for regularized appointments is not an argument for making Justices the representatives of Presidents or a particular ideology. Rather, according to proponents, the ability of Presidents to nominate Justices at regular intervals that would be afforded by term limits, coupled with the Senate’s authority to advise and consent, would help ensure, at least in the long run, that “[t]he political balance of the Court would reflect the opinions of the people over time as expressed in their choice of presidents and senators, rather than the happenstance of health or accident or the strategic timing of the justices.”[13]
Proponents underscore that the value of term limits in advancing these constitutional principles is heightened by various ways in which the consequences of life tenure have changed over time. In particular, the average length of Justices’ terms has expanded.[14] Life spans have lengthened and modern Justices may increasingly delay retirement.[15] Up until the late 1960s, the average term of service was around fifteen years. By contrast, the average tenure of the Justices who have left the Court since 1970 has been roughly twenty-six years.[16] In the future, it’s quite possible that tenure will continue to lengthen, as several recent Justices have been younger than their predecessors and life spans generally continue to grow. The increasing length of the Justices’ terms, in turn, raises the stakes of each nomination. Political partisans may press for nominating younger candidates in the hope that they will serve longer and thus allow for the entrenchment of particular views on the Court for three or more decades into the future.[17]
Proponents also note that the variation in the number of each President’s opportunities to nominate a Justice has become more pronounced. Throughout history, the median, modal, and mean number of chances for a Supreme Court appointment has been approximately two per four-year term.[18] Most Presidents have had either one or two opportunities, and a small number have been very lucky and received four or more. But sometimes Presidents get none at all. This situation has occurred more frequently since the mid-1970s. In the 188 years from the presidency of George Washington to the presidency of Gerald Ford, there were only five presidential terms out of forty-seven (just eleven percent) in which Presidents did not get an opportunity to make a Supreme Court appointment.[19] But in the forty-four years from Jimmy Carter to Donald Trump, Presidents did not make a single appointment in three out of eleven terms (twenty-seven percent)—and four out of eleven terms if we include Senate Republicans’ refusal to consider the nomination of Judge Merrick Garland during President Barack Obama’s second term.
Again, proponents of term limits do not seek partisan balance. According to proponents, if a party wins the White House more often, its Presidents should have the opportunity to nominate more Justices, though this opportunity may be checked, as with all judicial appointments, by the Senate’s advice and consent. But, proponents emphasize, our current system allows parties to shape the composition and influence the direction of the Court to a degree that does not necessarily reflect their record of electoral success over time.[20] They argue that the existing system—buffeted by chance illness or deaths, possible strategic behavior, and aggressive political tactics—makes it easier than it should be for parties that lose elections to nevertheless have outsized impact on who sits on the Court and on its general direction.
Another justification offered for term limits is that they would largely eliminate the possibility of “strategic retirements” and, just as importantly, the perception that Justices retire for strategic reasons. Through strategic retirements, Justices attempt to control the future direction of the Court by creating openings when there is a particular President or Senate majority. Conversely, Justices may remain on the Court, even if they are no longer up to the job, because they are waiting for a different President to select their replacement on the Court. This kind of strategic calculation, or the perception of it, can fuel public beliefs that the Court is a partisan institution. It can contribute to the perception that the system is unfair or rigged, in part because strategic retirements prevent Presidents from receiving a roughly equal number of appointments for each term in office. Moreover, the possibility that Justices might retire strategically can lead to public relations campaigns to push a Justice to retire precisely so that a particular President can appoint a successor. Though it may be impossible to know why any particular Justice chooses to retire at a particular moment, term limits could put a stop to both the possibility and perception of strategic retirements. Under one possible design of term limits that we discuss further below, Presidents (with Senate advice and consent) would only be able to fill out the remaining years of the term for a retiring Justice, eliminating much of the advantage of, and hence the motivation for, retiring strategically. Proponents do not claim that term limits are a panacea for polarization, nor that they would stop political parties from fighting over judicial appointments. But by regularizing Supreme Court appointments, term limits would make the system of Supreme Court appointments fairer, less arbitrary, and more predictable, and therefore enhance the Court’s legitimacy in the eyes of the public.
Finally, in addition to these arguments based in constitutional structure and principle, proponents of term limits also believe that they would enhance the Court’s decisionmaking, on the ground that a regular rotation in personnel tends to improve the quality of decisionmaking over time.[21] Judges, like others, are inevitably a product of their time. After distinguished professional careers and eighteen-year terms on the Court, judges may tend to grow more distant from the experiences and contexts to which their legal decisions apply. Judges, like others, can also become set in their ways, making fresh perspectives on issues more difficult to achieve. Rotation in office introduces new voices and new interpersonal dynamics into the deliberations of multimember bodies, as well as more generational diversity, which may bring valuable perspectives.[22] Ensuring that there are regular changes in composition can be especially important for bodies where a small number of people hold considerable power. Indeed, given how powerful the Court has become as an institution—certainly more powerful than the Framers of our Constitution expected—relying on Justices to voluntarily make way for other figures who can help revitalize the Court is asking a great deal. These are some of the reasons that rules and norms governing the leadership of other organizations often require a change of leadership after many years.[23] These are also some of the reasons that other systems that appoint judges through non-political mechanisms, such as through committees of judges and lawyers, nonetheless impose either term limits or mandatory retirement ages on their judges.[24]
The possibility of imposing a mandatory retirement age on Justices is sometimes offered as an alternative to term limits, and the Commission heard testimony on this possibility.[25] Mandatory retirements would arguably improve the quality of decisionmaking for the reasons stated above and provide some degree of responsiveness to elections over time, while preserving judicial independence by allowing for long terms. As with term limits, a mandatory retirement age would make it possible to know when a given Justice will retire (assuming that the Justice does not die or leave the bench early). But, according to term limit proponents, a mandatory retirement age is inferior to term limits in important respects. It would not guarantee regular appointments. It would still encourage parties to nominate ever younger candidates in order to squeeze the maximum number of years out of each appointment. Thus, if the goal is to regularize appointments and to ensure that political parties that win elections get a predictable number of opportunities to appoint new Justices, term limits offer a better option.
II. Objections to Term Limits
The Commission also heard and considered arguments against term limits. In the main, the opponents argue that the current system of appointing and protecting the independence and neutrality of federal judges and Justices, through life tenure, has worked well for over 230 years. The independent federal judiciary, protected by lifetime tenure, is one of the most signal accomplishments of our constitutional system. Opponents of term limits for Supreme Court Justices argue that proponents therefore have a heavy burden of persuasion when they seek to remove what opponents regard as an important pillar of judicial independence. Opponents point to the Constitution’s provision that judges serve for “good Behaviour,” which they regard as providing for life tenure, as one of only two express protections of judicial independence.[26] Opponents contend that far from meeting the burden of persuasion, term limits are likely to worsen existing problems, such as the partisanship of the confirmation process, while at the same time introducing new problems. In addition, opponents argue that term limits would be extraordinarily difficult to implement.
Most fundamentally, term limit opponents deny that it would be good for each President to receive two appointments to the Court. They are concerned that the proposal would further politicize appointments and heighten the belief that Justices are allies of the President and the President’s party—developments they think could do great damage to the Court. Because they believe that term limits could be perceived as founded on the view that judges are partisan, political actors, opponents of term limits believe that inestimable damage could be done to the federal courts by adoption of this reform proposal.
Opponents also raise a number of more specific objections to term limit proposals and their justifications.
First, opponents see term limits as setting up a dynamic in which the presidential election focuses not just on Court appointments in general but on the two guaranteed vacancies and appointments specifically. If two seats on the Supreme Court are guaranteed to open every 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 firm might decide cases in light of those plans or might appear to do so. While it might be thought that term limits reduce the pressure for Presidents to appoint younger people, such that most Justices who serve eighteen-year terms may still view their positions on the Court as their last major position, other Justices who have served some portion of the eighteen-year term might decide that they would prefer to take a different unlimited position in government or the private sector rather than filling out the rest of the term. In order to address this problem, term limits proposals would have to be coupled with what opponents see as troubling restrictions on post-Court employment.[30]
Fourth, by design, term limits would produce more turnover on the Supreme Court than has been typical in recent decades. Opponents argue that this turnover could have costs as well as benefits. At the outset, one might object that term limits would deprive the Court of certain benefits that can result from Justices serving for several decades. Some might believe life tenure tends to improve the judgment of the Justices because wisdom and, perhaps, open-mindedness come with age and experience. Moreover, several of the greatest Justices in American history—Chief Justice Marshall comes quickly to mind—served on the Court for a very long time. Opponents argue that a system of term limits would make such distinguished careers less possible—or at least shorter—in the future and might reduce the stature of the Court as a whole, including its stature with the public, the bar, and the lower courts. Moreover, the concern for the advanced age of long-serving Justices ignores, in the view of critics, that the most pronounced divisions on the Court are not by age, but by judicial philosophy.
Another concern about increased turnover is that it might destabilize the Court’s doctrine. To the extent that new Justices have different views of the law than their predecessors, and to the extent that they are willing to overrule or narrow precedents with which they disagree, more turnover on the Supreme Court could lead to more frequent doctrinal shifts, or even cycles in which major precedents are discarded only to be reinstated later, perhaps in very short order. To opponents of term limits, the current system provides sufficient turnover and there is little reason to adopt a new and untried system simply to generate more turnover.[31]
Fifth, those who object to term limits fear that such limits would give the President too much power, an especially worrying concern given how powerful the modern presidency has become. If Presidents make new appointments to the Supreme Court every two years, two-term Presidents will have appointed four of the nine active Justices by the final year of their administrations. The power to appoint four-ninths of the Supreme Court is a substantial power; term limits would lock in that power and make it less subject to the vagaries of chance.[32] Critics might therefore argue that the randomness of presidential opportunities to make Supreme Court appointments throughout history has actually been an advantage, because it limits presidential power and ambitions, and thereby helps preserve the Court’s independence. And over time, opponents argue, we might expect a “balancing out,” such that the randomness of appointments over more limited periods is not a sufficient source of concern to justify the institution of a system of term limits. Opponents also argue that a focus on the presidency and presidential politics in structuring regularized appointments mistakenly minimizes the role of the Senate. These concerns would be heightened were the term limit reduced to twelve years; in the course of two terms, a single President would have appointed a majority of the Court.
Sixth, a different type of objection involves the incentives for gamesmanship in particular cases. If it is known that a swing Justice will lose the power to participate in cases on a specific date, either litigants or lower court judges might try to time a case accordingly.[33] Conversely, Justices who want to weigh in on a question while they still have the power to do so might be inclined to grant certiorari before the question has fully “percolate[d]” through the lower courts, and they might also face temptations to accept cases that are not ideal “vehicle[s]” for presenting and deciding the question.[34] Similarly, other Justices might vote to defer hearing a case or an issue until their colleague had been forced to leave the Court.
A final objection returns to the premises of the proposal. Proponents ground their support for term limits on the principles and values that underlie the original constitutional structure. Opponents emphasize, however, that the Constitution expressly provides for judicial service during “good Behaviour.” Opponents of term limits point to Hamilton’s observation in Federalist 78 that “nothing can contribute so much to [the judiciary’s] firmness and independence as permanency in office,” a quality he regarded as “an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.”[35] In the view of those who oppose term limits, life tenure as guaranteed by the Constitution helps protect both the decisional and institutional independence of the third branch from being “overpowered, awed, or influenced” by the other branches.[36] *** Opponents of term limits caution that any such proposal should not appear as a settling of scores, as an attack on particular Justices, or an effort to change the substantive opinions and direction of the current Court. And term limits by themselves cannot ensure that the President will nominate high-quality individuals. Those who object to term limits believe that the Supreme Court has functioned with life tenure ever since the Founding, and switching to a system of term limits poses major design challenges and could well further politicize the confirmation and selection process while also affecting the culture and standing of the Court. A broader concern they hold is less about term limits than about any reform that weakens one of the Constitution’s two express protections of judicial independence. In our current polarized environment, opponents argue, any change to the structure of the Supreme Court might be regarded with suspicion, and the risks of unintended consequences are significant. Opponents further contend that, if pursued by statute rather than constitutional amendment, such reform might open the door to further structural changes, such as an overreaching President’s attempt in collaboration with Congress to remove life tenure from all Article III judges, with considerable risk to the stability of the judiciary. In short, say opponents of term limits, the current system of life tenure is not broken, and term limit proponents have not met their heavy burden of persuasion.
Term limit proponents acknowledge that the risk of unintended consequences is an important point to consider, but they argue that it is not a conclusive argument for inertia, particularly because the status quo has significant problems. Indeed, they argue, inertia too can have unintended consequences, as illustrated by the gradually lengthening tenure of Justices over time and the increased perception that Justices retire strategically. Responding to the costs and risks asserted by opponents, they note that the average tenure of the Justices who left the Supreme Court from the Founding until 1970 was less than eighteen years.[37] So, proponents argue, the Court has historically experienced greater turnover than a system of eighteen-year terms would be likely to produce now. They argue that concerns over judicial independence or increased executive power are not supported by actual experience in courts that have term limits or mandatory retirement ages, nor are they supported more generally by the empirical literature.[38] Moreover, these concerns can and should be addressed through the careful design of the system, such as through long and non-renewable term limits, a guaranteed lifetime of judicial office and compensation while performing other judicial duties, and the coupling of term limits with some restrictions on the types of post-Court employment. Even some critics of term limits, they note, think it fair to expect that “long fixed terms followed by assignment to a court of appeals” would give individual Justices a degree of independence comparable to the status quo.[39] And they respond to opponents’ concerns about politicization of the appointments process by pointing out that the process is already highly politicized and that an eighteen-year term is long enough to avoid any increase in the heat of confirmation battles.
III. Analyzing a Constitutional Amendment for Term Limits
This section identifies the major issues to consider in designing a system of term limits. These issues include the size of the Court, the length of the Justices’ terms, how to fill vacancies that arise before a set term ends, and how to transition from the current system.
Many of these issues arise under either a proposed constitutional amendment creating term limits or a statutory term limit proposal. But the options for addressing them differ depending on which path is being considered. In this Part, we discuss these issues in the context of a constitutional amendment to adopt term limits. In Part IV, we do so in the context of a statutory term limits proposal, and we also discuss whether these reforms would require constitutional amendment or whether they could be enacted by Congress. While our aim is not to recommend a specific proposal, we believe it is necessary to discuss plausible reform options in order to ground our analysis.
A. Setting the Court’s Size and the Appropriate Term Length
A system of term limits ought to specify the appropriate size of the Court. One major justification for a staggered, term-limited system of appointment is that such a system would bring about less randomness and greater equality across presidential terms in the number of Justices a President would have the opportunity to appoint. That aim would be drastically undermined, however, were Congress free to vary the size of the Court. We separately evaluate proposals to expand the size of the Court in Chapter 2 of this Report. For purposes of our analysis here, we assume that an amendment would fix the Court’s size at nine Justices.
With a nine-member Court, the two likeliest options for term limits would be a twelve-year term or an eighteen-year term, as both would create a roughly equal number of appointment opportunities in each presidential term. In recent decades, the overwhelming majority of term limit proposals have endorsed the eighteen-year version. In that version, each President would have two regular appointments in a single presidential term. In the twelve-year version, each President would have three such appointments.
Important tradeoffs are involved in this choice. As we noted at the outset of this Chapter, from the perspective of the state courts and international peers, an eighteen-year term is quite long. Of the forty-seven states that impose term limits for their highest court judges, only one state has a term longer than twelve years.[40] Similarly, of the twenty-seven countries that impose a term limit, those limits range between five and fifteen years.[41] The German constitutional court, considered one of the strongest constitutional courts in Europe, is composed of judges who serve twelve-year non-renewable terms and who must retire at age sixty-eight.[42]
As this experience in the states and other countries suggests, there is a case to be made for twelve-year, non-renewable terms if the structure of the Court is considered in isolation from the larger political circumstances of the appointments process. With twelve-year terms, each presidential term would involve three regularly scheduled appointments. In addition, a President elected for two terms would have the power to appoint six regularly appointed Justices. Even if a constitutional amendment for term limits would to some extent reduce the intensity of political conflict over Court appointments, however, three appointments every four years would put the Court at the center of the political process on an almost yearly basis. There are also reasons to be concerned that enabling a single two-term President to make six appointments gives one person too much power to reshape the Court. This tradeoff has led most proponents of term limits in the United States to endorse an eighteen-year term. For simplicity’s sake, and in the light of these considerations, we will use an eighteen-year term limit to ground our analysis.
That said, circumstances could change, making potential turbulence less of a risk. If so, the costs and benefits of a twelve-year term as opposed to an eighteen-year term might be weighted differently than at present. For this reason, the designers of a constitutional amendment might consider whether the amendment should give Congress the power to adopt prospectively a twelve-year term (that is, to adopt a statute that would take effect for Justices appointed after the date of enactment). Drafters should take care to hew to the core purpose of such an amendment by ensuring that each President receives the same number of regularly scheduled appointments.
B. Effective Date and Timing of Appointments
The designers of a constitutional amendment to implement a term limit system must make several choices related to the timing of the reform.
First, drafters must decide when the amendment would take effect. The amendment could, of course, take effect upon adoption. If there is concern that knowledge of who the sitting President is at the time the amendment takes effect would make it more difficult for the amendment to be adopted, the amendment could be structured to take effect starting at some later date. For instance, it could begin in the first presidential administration elected after the amendment is approved.
Second, drafters must also determine the timing of appointments. The amendment could specify when during a presidential term the President’s two appointments would arise. If the drafters wished to avoid appointments arising during an election year, they could specify that appointments would arise in years one and three of a presidential term. To avoid disrupting an ongoing Supreme Court term, the amendment could specify that the outgoing Justice’s term ends on a specific date that typically falls after the Court has issued all its opinions in argued cases. The incoming Justice’s term can be made to run from that date, in which case Justices might serve slightly fewer than eighteen years, given the time it would take for confirmation.
Third, drafters must also address how to fill seats that become vacant due to retirement, death, or impeachment before the end of a Justice’s eighteen-year term. Once every Justice has been appointed to an eighteen-year seat, this situation is not likely to occur often. Only one Justice appointed in the last fifty years has served fewer than eighteen years.[43]
We identify three options for how to fill seats that become vacant:
The first is to leave those seats unfilled for the remainder of any retiring Justice’s term, thereby preventing any President from having more than two appointments in a presidential term. That option would leave the Court to function without a full complement of Justices for what might be extended periods; it would also mean the Court would likely have to function for periods with an even number of Justices. The Court has functioned occasionally with an even number of Justices, as it did for fourteen months after Justice Scalia’s death. Some argue that an even-numbered Court encourages the Justices to deliberate more to find common ground, in an effort to avoid leaving the Court unable to decide a case. In addition, the Court would not be able to find state or national action unconstitutional absent greater consensus than a five-to-four decision entails. But a significant cost of having an evenly divided Court is that it could prevent the Court from ensuring that federal law is uniform throughout the country. If the courts of appeals are divided on an issue, for example, there would be no higher judicial authority to resolve that difference if the Court itself is evenly divided on the issue. The same law could be held constitutional in one part of the country and unconstitutional in another.
A second option is that the sitting President, with Senate confirmation, would have the power to appoint a candidate to fill out only the remainder of the original eighteen-year term. Some witnesses testified that confirmation in this context should require a supermajority Senate vote.[44] The justification for that higher hurdle is that seats that become vacant before the end of an eighteen-year term reintroduce a random element into the timing of appointments by allowing certain Presidents to make more than two appointments. On this view, those appointments should succeed only if they are backed by a significant consensus in the Senate. Although a supermajority requirement might lead some seats to remain vacant (as in the first option), no President would be deprived of the right to make two regularly scheduled appointments in a presidential term. If the amendment does permit the President to fill out the term of a seat that becomes vacant prematurely, the drafters might consider prohibiting the person appointed from being reappointed to a full eighteen-year term.
A third option depends on how the amendment treats Justices who have reached the end of their eighteen-year terms. The amendment might define these individuals as “Senior Justices,” who continue to hold offices as Article III judges but no longer participate in the day-to-day operation of the Court. Given that these Justices have all been confirmed by the Senate, the amendment could give the President the option to designate a Senior Justice, if one is available, to fill out an eighteen-year term that has become vacant prematurely. If unilateral presidential designation is undesirable, the amendment could instead require the Senate to confirm the President’s choice (if no Senior Justices are available, one of the first two options would have to apply).
C. Designing the Transition to Fixed-Term Appointments
How to structure the Court’s transition to fixed-term appointments presents significant practical challenges. The most significant options that have been proposed are discussed below. For purposes of this analysis, our discussion will assume an eighteen-year term with regular presidential nominations in years one and three of a President’s term.
1. Sitting Justices Retire on a Fixed Schedule That the Amendment Establishes
Under this approach, once the amendment takes effect, the longest-serving Justice would retire in year one of the first presidential term in which the amendment takes effect. The next most senior Justice would retire in year three, and so on. This strategy is the conceptually cleanest structure for the transition. Were this approach adopted, sixteen years after the first Justice is appointed to a term-limited seat, the full Court would consist entirely of Justices serving eighteen-year terms. For instance, if the amendment took effect in 2025, the most junior Justice on the current Court would retire in 2041, after twenty-one years of service. If this were done through a constitutional amendment, the Commission does not perceive there to be any significant constitutional issues in applying the amendment to sitting Justices.
2. Sitting Justices Remain on the Court as New Term-Limited Justices Are Appointed
The Commission is aware that while the simplest approach would be to apply a term limits amendment to the sitting Justices, this strategy might generate political conflict that would make passage of an amendment difficult.
If the amendment is designed not to apply to currently sitting Justices, the Court could expand temporarily. New Justices would start being appointed every two years for eighteen-year terms after the amendment’s effective date. As legacy Justices leave, their seats would not be filled as long as at least nine Justices would remain on the Court. It is likely that the Court would never drop below nine Justices. One study concludes that, under this approach, it would take around thirty-five years until the full Court consisted entirely of Justices serving for fixed terms.[45]
This approach does come with potential costs, however. It would likely produce a considerably expanded Court for a period of years. In Chapter 2, we consider some of the consequences of a larger bench, including that it could hamper the Court’s decisionmaking (depending on how large the expansion is). That said, many of the highest courts in other democracies have eleven or more members, and in many cases they function effectively by sitting in panels, a prospect we also explore in Chapter 2.[46] On the other hand, no state supreme court has more than nine judges and only seven are even that large; most have seven judges and seventeen have five.[47] As one former federal judge testified to the Commission, above a certain size, effective collective deliberation becomes more difficult.[48] In addition, in some years, the Court might also have an even number of Justices, which would raise the issues discussed above about the pros and cons of an even-numbered Court.[49] It is also uncertain how the public would perceive the Court if its size fluctuated from year to year for many years. Closely divided decisions on a Court that sometimes has nine members, sometimes eleven, sometimes thirteen, might make the Court appear less stable and generate perceptions that outcomes turn on the fortuity of how many Justices happen to be on the Court at any particular moment.
3. New Term-Limited Justices Are Appointed Only When Currently Sitting Justices Vacate Their Seats
Another alternative proposed in academic work on this issue is that current Justices continue to serve for life and new appointments are made only when the seat of a currently sitting Justice becomes vacant.[50] The amendment would still establish a schedule of regular eighteen-year appointments, into which retirements of currently sitting Justices would then have to be integrated. For example, if a currently sitting Justice retires before the date for vacating that seat occurs, the President nominates a Justice who would serve the next eighteen-year slot that is scheduled to become available. Suppose under the amendment the first three eighteen-year terms would arise in 2025, 2027, and 2029. If a currently sitting Justice leaves the bench in 2024, the President would nominate a Justice whose term would be nineteen years (2024–2025 plus the eighteen-year term that begins in 2025). If the next sitting Justice leaves in 2025, the President would nominate a Justice whose term would be twenty years (2025–2027 plus the eighteen-year term that begins in 2027). If another seat does not open up until 2031, the President would nominate a Justice who would serve for only sixteen years (filling the term that was scheduled to begin in 2029 and end in 2047).
This proposal would avoid temporary expansion of the Court, but it would also generate the longest time interval before the full Court was composed of Justices serving eighteen-year terms. One study estimates that, under this proposal, it might take around fifty-two years before the Court reached the point that all Justices were serving eighteen-year terms.[51] The additional complexities just noted about timing of appointments might also be considered a cost of this proposal.
4. Addressing Seats Held by Currently Sitting Justices That Become Vacated Prematurely
If the amendment applies to currently sitting Justices, as in the first option above, a distinct issue arises concerning the seats of those Justices that might become vacant prematurely. For example, a currently sitting Justice whose term would be scheduled to end in 2033 might vacate the seat in 2025. This may be a more likely scenario than that a new Justice appointed to an eighteen-year term would vacate that seat prematurely. Simply for reasons of age, it seems more likely that a Justice on the current Court would leave office eight years before a scheduled end-of-term date than would a newly appointed eighteen-year term Justice.
One option is the same as discussed earlier: the seat could remain vacant. But in this context, that could leave the Court with fewer than nine Justices, and possibly an even number of Justices, for an extended time—eight years, in the example above.
If the seat that becomes vacant is the next one the sitting President would be entitled to fill in any event during the four-year term, the President could be given the power to nominate the Justice to fill that seat. That Justice would then serve eighteen years plus the small amount of additional time involved; if a currently sitting Justice’s term is scheduled to end in 2027, but ends in 2026, the new Justice would serve one year plus the new eighteen-year term. Given that a new Justice under this scenario would never serve more than twenty years, the normal presidential nomination and Senate confirmation process might be appropriate (that is, without a supermajority requirement).
If the President has not yet filled any of the two allocated seats, and the Justice who leaves is the one whose term would expire in year three of the administration, there are two options for addressing that scenario. In the first, the amendment would treat this situation as if the President is filling the first of two seats. The Justice who would otherwise be scheduled to retire first during that term would instead stay on until the term ends of the Justice scheduled to retire in year three—the Justice who has left prematurely. At that point, that Justice retires and the President fills the second seat. The second option is that the President appoints a Justice to fill out the remainder of the term for the Justice who left early plus eighteen years. When the term of the Justice scheduled to retire in year one of the administration ends, the President fills that term as well. The first option reduces possibilities of strategic retirements, but might be considered overly complex.
In any other context, the current President should at most have the authority to appoint a replacement only for the rest of the term that the departing Justice was scheduled to serve. Under the theory behind the term limits amendment, no President should get to make more than two eighteen-year appointments in any single presidential term. With respect to the replacement Justice, moreover, the options discussed earlier might be appropriate. First, a supermajority vote requirement in the Senate might be appropriate. Second, if there are “senior” Supreme Court Justices, one could be designated to serve out the remainder of the scheduled term.
D. Constraints on Justices Who Have Fully Retired After Finishing Their Term of Service
Many countries that impose term limits or retirement ages on judges of their highest courts also impose constraints on the post-service activities of those judges. There are two main reasons for imposing such constraints. The most important is to avoid undermining the fact and appearance of judicial independence by eliminating the likelihood of Justices’ altering their behavior in their last years of their service on the Court to enhance certain post-service employment opportunities. In addition, certain post-service positions might be detrimental to the public’s sense of the integrity and professionalism of the Court. At the same time, it is important that former Justices who choose to retire from judicial service altogether after their term ends have appropriate opportunities to pursue other professional interests.
In order to address these concerns, the amendment could specify that at the end of their service, Justices have the option of retaining the office of an Article III judge and remaining available to serve by designation on any of the lower federal courts; to serve by designation on the Supreme Court if a Justice in an eighteen-year seat vacates that seat prematurely; or to perform other federal judicial functions. The amendment could also specify that upon completion of their terms, Justices would continue to receive a pension for life commensurate with their salaries on the bench.[52] But these two provisions would not solve the problem fully. With term limits, some Justices would complete service at younger ages than the current average age at which Justices leave the Court. Some might prefer to relinquish their Article III commission and work in other capacities.
Former Justices who have chosen to retire fully from the bench could be barred from certain kinds of employment for a certain period of time. The prospect of high-level government employment is a particular concern, given the risk of public perceptions that a Justice will have ruled in certain ways late in their term to curry favor with the sitting government. Retired Justices could be prohibited from involvement in legal matters that had been the subject of proceedings before the Court and, perhaps, closely related matters.[53] Former Justices could also be barred from working on any matters before the Court. Service in roles such as mediator, arbitrator, or law school lecturer, on the other hand, are most compatible with the role of a retired Justice. While some of these concerns should be addressed in any constitutional amendment—such as whether term-limited Justices retain the option of remaining Article III judges—others might be appropriately handled through legislation.
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 senior status. Thereafter, these “Senior Justices” would no longer participate regularly in the ordinary work of the Court. But they would perform other duties, including sitting by designation in the lower federal courts and assisting the Chief Justice with administrative duties. Congress could specify these duties by statute, or it could leave it to the Justices themselves to decide on them through an internal rule.[55]
If the duties of Senior Justices were not sufficiently germane to the office of a Supreme Court Justice, the change in duties might amount to appointment to a new office. This would require a new nomination by the President and confirmation by the Senate. However, it is not clear that the germaneness requirement applies to the prospective redefinition of an office. In any case, the Supreme Court’s understanding of germaneness appears to be very broad. In Weiss v. United States,[56] for example, the Court held that the duties of a military judge were sufficiently germane to the duties of a commissioned officer that the officer could be designated to serve as a judge without going through the appointments process.
The Justices already perform the duties listed above and that would pertain to Senior Justices under the proposal. Current federal law authorizes Justices to sit on circuit courts.[57] And as a historical matter, federal law long required the Justices to sit on other federal courts in addition to hearing cases on the Supreme Court. For almost all of the first hundred years of the Republic, Supreme Court Justices “rode circuit”: they heard and decided cases in the lower federal courts. With the Judiciary Act of 1801, Congress abolished circuit riding, only to reinstate it in the Repeal Act of 1802 after control of Congress changed hands. The Supreme Court rejected a constitutional challenge to the 1802 Act in Stuart v. Laird,[58] in which the challenger sought to reverse a circuit court’s judgment partly on the ground that “the judges of the supreme court have no right to sit as circuit judges, not being appointed as such.”[59] The Supreme Court responded that circuit riding was so well established that its validity was no longer open to question: “[P]ractice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction.”[60] Justices continued to have circuit-riding duties until the late nineteenth century.[61]
Existing practice and precedent offer a model for the types of duties Senior Justices might perform. A federal statute, 28 U.S.C. § 371, provides two options for federal judges, including Supreme Court Justices, who meet certain service and age requirements. They may “retire from the office” under § 371(a), at which point they no longer hold the office of federal judge or Justice but continue to receive an annuity equivalent to their salary at the time of retirement. Or they may “retain the office but retire from regular active service” under § 371(b) and “continue to receive the salary of the office” if they perform a different set of duties, which they may select from a list set out in later sections. Listed duties include “a caseload involving courtroom participation,” “substantial judicial duties not involving courtroom participation,” “substantial administrative duties directly related to the operation of the courts,” or “substantial duties for a Federal or State governmental entity.” For lower court judges, the status created in § 371(b) is usually called senior status.
Under the current rules, judges who take senior status need not sit on any cases at all. They may, however, sit by designation within their own circuit at the discretion of the chief judge or judicial council of their circuit. They may also sit by designation in other circuits at the discretion of the Chief Justice upon presentation of a certificate of necessity by the chief judge or circuit justice of the other circuit. Supreme Court Justices who retire from regular active service (and take the analogue of senior status for lower court judges) are not allowed to participate in any decisions or actions of the Supreme Court, but they may sit by designation in the lower federal courts.[62]
As with a constitutional amendment, drafters of a Junior/Senior Justice statute would have to make decisions about whether it would apply to sitting Justices, when the appointments of term-limited Justices would begin, how to handle vacancies that arose outside of the scheduled process, and whether there should be restrictions on the future employment of former Justices. The discussion of these issues in the constitutional amendment section applies equally to such a statute, with the caveat that applying the statute to sitting Justices might raise additional constitutional questions, as noted below.
1. Constitutional Issues Raised by the Junior/Senior Justice Proposal: The Good Behavior and Appointments Clauses
Article III, Section 1 provides that: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”[63] The Appointments Clause of Article II, Section 2 provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law … .”[64] The issues raised under these constitutional provisions by any term limits statute are complex, and what follows is a brief review of the relevant considerations. Commissioners disagree about the proper resolution of the questions raised.
Those who believe that the Junior/Senior Justice proposal is unconstitutional start with the Good Behavior Clause, which is conventionally interpreted to give federal judges “life tenure”: Federal judges hold their offices for an indefinite period that ends only when they die, voluntarily resign, or are involuntarily removed through the process of impeachment and conviction. Although the Good Behavior Clause does not specify the details of the “Offices” that federal judges hold, the Appointments Clause arguably recognizes a separate office of “Judge[] of the supreme Court” that is different from other federal judicial offices. If so, people who have been appointed to the Supreme Court must remain “Judges of the supreme Court.” Those who believe that the Junior/Senior Justice proposal is unconstitutional argue that Senior Justices (who would be barred from participating in the ordinary work of the Court after eighteen years) do not remain “Judges of the supreme Court” in the sense that the Constitution requires. Indeed, given the enormously consequential constitutional decisions of the Court that this Chapter emphasizes, these critics argue it is implausible to claim that individual Justices can be involuntarily removed from most of the Court’s constitutional work without being deemed to have lost their “office.” In addition, some believe that these specific textual provisions should be understood in the context of more general separation of powers principles, including the principle of judicial independence. Part of the reason the Good Behavior and Appointments Clauses are best understood to deny Congress the power to modify life tenure by statute, in this view, is to protect the structural principle of judicial independence that underwrites Article III of the Constitution.
Proponents of the Junior/Senior Justice proposal believe that Congress may redefine the office prospectively. Thus, for all new appointments made after the statute takes effect, the office of Justice of the Supreme Court would mean serving as a Junior Justice for the first eighteen years and serving as a Senior Justice thereafter. All Justices would have the same duties and powers, but the nature of these duties would change over time. Under this approach, every Justice, unless they retire, would eventually become a Senior Justice if they stay on the Court for more than eighteen years. Note that under the terms of this argument, the statutory changes would not apply to sitting Justices.
The debate hinges on the nature of the “office” of Justice of the Supreme Court that the Constitution creates and whether a statute that contemplates that the Justices’ duties will change after eighteen years removes them from that office in violation of the Good Behavior Clause. Proponents, relying on the senior status statute, 28 U.S.C. § 371(b) and (e), conclude that a change in duties does not necessarily involve a change in office because senior status judges still hold their office. For the same reason, they believe that deciding cases is not essential to continuing to hold office as a federal judge, and that deciding Supreme Court cases is not essential to continuing to hold the office of a Supreme Court Justice.
In support of this conclusion, proponents argue that the Supreme Court approved this system for senior judges in Booth v. United States.[65] In Booth, a unanimous Supreme Court held that a lower court federal judge who retired under the predecessor of § 371(b) “remains in office” within the meaning of Article III, Section 1.[66] The Court pointed out that senior judges exercise the judicial power of the United States in deciding cases when designated to do so. “It is scarcely necessary to say that a retired judge’s judicial acts would be illegal unless he who performed them held the office of judge. It is a contradiction in terms to assert that one who has retired in accordance with the statute may continue to function as a federal judge and yet not hold the office of a judge.”[67] On one reading of Booth, a statutory change of duties does not remove a judge from office as long as “[t]he purpose is … that he shall continue … to perform judicial service.”[68] The Supreme Court reaffirmed this reasoning in 2003 in Nguyen v. United States.[69]
Booth thus distinguishes between a change in duties, which is within the power of Congress, and removal from office or reduction in compensation, which are not: “Congress may lighten judicial duties, though it is without power to abolish the office or to diminish the compensation appertaining to it.”[70] Moreover, those who believe statutory term limits are constitutional argue that the reasoning of Booth and Nguyen also extends to retired Justices. Retired Justices such as David Souter and Sandra Day O’Connor have often participated in courts of appeals decisions pursuant to 28 U.S.C. § 294. When they do, proponents of the Junior/Senior Justice proposal believe they are best understood as having retained their office as Supreme Court Justices because they are exercising federal power and they have not been appointed to any new office. Hence, proponents conclude, Senior Justices retain the office of Justice of the Supreme Court even if their duties have changed and no longer include participation in the ordinary work of the Court. Critics, however, believe that retired Justices still hold federal judicial office, which is required under Booth if they are to exercise federal judicial power, but that they do not necessarily continue to occupy the constitutional office of Supreme Court Justice.[71]
Setting Booth aside, critics believe that the best understanding of the Constitution forbids the change in duties that the Junior/Senior Justice proposal entails. One constitutional scholar puts the argument this way: “To say there is a particular office of Supreme Court Justice, as opposed to federal judge in general, is to say that the Constitution contemplates some connection between the justices and the work of the Court.”[72] On one view, because the Court is a decisionmaking body in which members participate and deliberate together, the ability to “participat[e] in substantially all the body’s final decisions” is a necessary constitutional feature of holding the office of “Judge[] of the supreme Court.”[73] Because the Junior/Senior Justice proposal eliminates the right to participate in the Court’s decisions after eighteen years, some think it marks a change in office that violates the Good Behavior Clause.
Commentators have also discussed an alternative understanding of what it means to be a “Judge[] of the supreme Court”: Instead of participating in substantially all of the Court’s final decisions, perhaps each Justice must be able to participate in an equal share of the Court’s work. There is a sense in which the Junior/Senior Justice proposal establishes equality among the Justices, because each Justice has the same powers for the same period of time. But even so, critics argue that “the proposal is not consistent with the Constitution’s idea of a term” (and with the prevailing view that the Good Behavior Clause prevents Congress from imposing straightforward term limits).[74] In the critics’ view, Congress cannot establish a time limit after which Justices lose the ability to participate equally in the Court’s decisions, even if all Justices are subject to the same time limit.
To the extent that the proponents’ argument rests on the precedential authority of Booth, critics believe that the precedent is limited. Booth involved the Compensation Clause of Article III and the issue was whether Congress could cut the pay of lower federal court judges who had voluntarily taken what we now call senior status. As permitted by a 1919 amendment to the Judicial Code, they had chosen to “retire … from regular active service on the bench” but had not “resign[ed] [their] office,”[75] and they continued to hear cases or perform other judicial duties. The Court held that Congress could not constitutionally reduce their compensation because they still remained in office and exercised federal judicial power. Thus, critics of statutory term limits argue, Booth only holds that when judges voluntarily take senior status, but continue to hear cases, Congress may not reduce their compensation under the Compensation Clause. According to critics, it does not follow that Congress can require life-tenured Supreme Court Justices to stop participating in the Supreme Court’s exercises of judicial power after eighteen years.[76]
Proponents argue that if judges who have elected senior status “[c]ontinu[e] in Office” within the meaning of the Compensation Clause, then a statute requiring judges to take senior status after eighteen years would not deprive them of their “Offices” within the meaning of the Good Behavior Clause. In the proponents’ view, moreover, Booth and subsequent established practice with respect to retired Justices foreclose the critics’ arguments about the essential nature of the offices of “Judges of the supreme Court.” According to proponents, there is no meaningful legal distinction between Supreme Court Justices and other federal judges as to whether they retain their judicial office after senior status, and whether or not that status is voluntarily chosen or imposed by statute. On this view, substantial participation or equal participation in all merits decisions is therefore not “inherent” in the nature of the office of Supreme Court Justice. The critics’ assertion to the contrary, proponents argue, is belied by practice.
Critics respond that practice does not support allowing Congress to mandate a reduction in duties after a certain number of years. And the fact that our current practices make a reasonable accommodation for voluntary decisions does not mean that those practices establish a general principle that extends to a new set of arrangements in which Justices have no say in the matter.
Indeed, critics believe that the argument from history favors their position. Throughout most of American history, members of Congress have assumed that the only constitutional way to achieve term limits for Supreme Court Justices is through constitutional amendment. Starting as early as 1807,[77] and continuing to the present, more than two hundred proposals have been introduced in Congress to amend the Constitution to establish term limits for Supreme Court Justices or for federal judges more generally—sometimes in conjunction with other changes, sometimes as a stand-alone measure. But the first bill to establish the functional equivalent of term limits by statute was not introduced until 2020.[78] The very idea of mandating term limits by statute is a recent innovation.
B. An Alternative Proposal: Original/Appellate Jurisdiction
An alternative to the Junior/Senior Justice proposal is the Original/Appellate Jurisdiction proposal, under which all Justices continue to hear original jurisdiction cases throughout their tenure in office, but only the nine most junior Justices in service hear cases brought to the Court under its appellate jurisdiction.[79] The Court hears only a small number of cases through original jurisdiction every year. Most cases, and almost all of the controversial cases, come before the Court through its discretionary appellate jurisdiction. In addition to participating in cases involving original jurisdiction, Senior Justices may also perform other duties, as in the Junior/Senior Justice proposal above or under the current retirement statute. This proposal does not separate appellate jurisdiction cases for reasons of efficiency. Rather, the proposal offers another way of creating the effective equivalent of term limits that might avoid some of the constitutional problems of the main proposal.
The central argument for the Original/Appellate proposal is that it can be linked to a specific textual provision in the Constitution. Article III, Section 2 of the Constitution gives Congress the power to regulate the Court’s appellate jurisdiction: “[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”[80] In Marbury v. Madison,[81] the Court held that the Exceptions and Regulations Clause applied only to the Court’s appellate jurisdiction and that Congress could not alter the Court’s original jurisdiction.[82] The proposal argues, accordingly, that although Congress must allow all Justices to hear all cases arising out of original jurisdiction, it may provide, as a regulation of appellate jurisdiction, that only Junior Justices hear appeals.
Although this proposal invokes a different congressional power, it raises some of the same constitutional issues discussed above. No matter which enumerated power Congress is exercising, Congress’s statutes must comport with the Good Behavior Clause and the Appointments Clause. If critics are correct that everyone who holds the office of “Judge[] of the supreme Court” must be able to participate in substantially all of the Court’s final decisions, or must remain eligible to participate in an equal share of the Court’s work, then the Original/Appellate proposal would be vulnerable to the same objections as the Junior/Senior Justice proposal.
Critics may raise several additional objections. First, critics will argue that the Exceptions and Regulations Clause gives Congress the power to change the scope of the Supreme Court’s appellate jurisdiction, but not the personnel who decide appeals. Put another way, the Clause allows Congress to decide what appeals the Court can hear, but not who hears the appeals.
Proponents, in turn, will argue this does not attend to the distinction between “exceptions” to and “regulations” of appellate jurisdiction that appears in the text of Article III. “Exceptions” to appellate jurisdiction involve limiting what cases the Court may hear. But “regulations” of appellate jurisdiction may also include deciding how the Court hears appeals and who hears them. The Supreme Court has never addressed this precise issue.
A second objection is that the Original/Appellate proposal creates two panels. One panel, consisting of all of the Justices, hears original jurisdiction cases. The other, consisting only of the nine Justices most junior in service, hears appellate cases. As we discuss in Chapter 2 at greater length, there is an argument that this aspect of the proposal would violate the provision in Article III, Section 1 that “[t]he judicial Power of the United States, shall be vested in one supreme Court.”[83] From a textual point of view, if there is “one” Supreme Court, then perhaps the Justices must participate together in deciding merits cases and may not decide cases in separate panels.
A third objection to the Original/Appellate proposal is that, like all other proposals for Supreme Court panels, it gives Congress too much power to gerrymander the Justices by subject matter to attempt to manipulate the outcome of particular cases. If Congress may divide cases in this way, why not in other ways that would undermine the Court’s integrity and independence? For example, Congress might create a special panel that heard only cases involving abortion or the environment.
Proponents might respond that whether or not a general power to divide the Court into panels poses dangers, the Constitution itself creates a distinction between the Supreme Court’s original and appellate jurisdiction. This provision offers a bright-line rule, which, according to Marbury v. Madison, Congress may not vary. When Congress follows this bright-line rule, there is no danger to judicial independence. Congress cannot expand or contract the Court’s original jurisdiction. Therefore, the proposal does not assume that Congress has a general power to create panels of the Court. It simply argues that this one, which matches distinctions already present in the text of Article III, is constitutionally valid.
C. An Alternative Proposal: Designated Supreme Court Justices
The third proposal attempts to respond to the concern that the Junior/Senior Justice proposal effectively removes Justices from their offices. Instead, it proposes that Presidents henceforth only appoint judges from the lower federal courts to sit by designation on the Supreme Court for a non-renewable term of eighteen years. The relevant statute will specify that one of the duties of lower federal court judges (or some statutorily demarcated subset of these judges) is that they may be called upon to serve by designation on the Supreme Court for eighteen years, after which they would return to their original court.[84]
Under this proposal, Presidents would no longer appoint anyone to the office of “Judge[] of the supreme Court.” Instead, Presidents would simply designate lower court judges to serve on the Court temporarily. The statute could provide that the designation is subject to the ordinary advice-and-consent process. If the designation does not amount to appointment to a different office (see the discussion below), advice and consent would not be required by the Constitution, but Congress might nevertheless provide for it.
One main objection to the Designated Justices proposal is a textual argument. As noted previously, the Appointments Clause of Article II contemplates a separate office of “Judge[] of the supreme Court.” Therefore, critics will assert that the judges who sit and decide cases on the Supreme Court must hold the office of “Judges of the supreme Court.”
Proponents will respond that the existence of a separate office of “Judge[] of the supreme Court” does not mean that someone not appointed to that office is forbidden to serve on the Supreme Court by designation. Federal judges often serve on different courts by designation without receiving new commissions. Retired Supreme Court Justices serve on appellate and district courts; appellate judges serve as district judges, and district judges serve as appellate judges by designation. In addition, Supreme Court seats have been filled on a temporary basis through recess appointments without a lifetime appointment, and even without Senate confirmation. The Vacancies Clause of Article II, Section 2, Clause 3, which applies to federal offices generally, provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”[85] Over three hundred federal judges, including fifteen Supreme Court Justices, have been appointed through this process.[86] Lower federal courts have approved of its constitutionality.[87] If Presidents may temporarily fill Supreme Court vacancies without the Senate’s advice and consent, the argument goes, a fortiori they should be permitted to do so with the Senate’s advice and consent.[88]
Critics will say that the Constitution distinguishes the Supreme Court from other federal courts and that everyone who sits on the Supreme Court must hold the office of “Judge[] of the supreme Court” (whether pursuant to a regular appointment under the Appointments Clause, which lasts during good behavior, or a recess appointment under the Vacancies Clause, which lasts for at most two years). Critics may also note that in the vast majority of cases, when a President has made recess appointments to either the lower courts or the Supreme Court, Congress has subsequently confirmed these judges and Justices to lifetime appointments.[89] And when judges sit by designation on other courts, they usually remain only for a short time, and sometimes only for a single case. This practice, critics of this proposal will argue, is very different than a statutory designation lasting eighteen years, which would cover a sizeable proportion—and often a majority—of any federal judge’s career. There is nothing temporary about such appointments, and hence they cannot be justified by existing practice.
A second main objection to the Designated Justices proposal is rooted in past practice: No person who does not hold the office of Justice of the Supreme Court has ever sat on or decided a case before the Supreme Court.[90] Justices have indeed sat on lower federal courts from the beginning of the Republic, and Justices who take senior status sit by designation today. Nevertheless, the opposite has never occurred—lower federal court judges have never sat by designation on the Supreme Court. The novelty of the practice suggests that it is unconstitutional.
Proponents will respond that if Justices may “move down” and sit on lower courts by designation, there is no reason why lower court judges may not “move up” by designation. In fact, district court judges often sit by designation on circuit courts of appeals. Proponents would assert, therefore, that district and circuit court judges should also be able to sit by designation on the Supreme Court. The novelty of a practice does not by itself prove that it is unconstitutional; otherwise, a host of federal laws that exercised constitutional powers in new ways would be unconstitutional.[91]
V. Addressing the Risk of Repeated Confirmation Impasse
It is essential that any term limits proposal provide an acceptable mechanism for resolving the problem of repeated confirmation impasses. Absent such a mechanism, the repeated failure of the Senate to confirm any nominee would undermine a major justification for staggered term limits: that each President be entitled to the same number of regular nominations. Designing a structure to address the risk of impasse, however, is not an easy matter. That structure must not give too much effective power to the President but also address the risk of repeated confirmation impasses. And the difficulty of reforming the confirmation process is among the reasons opponents of term limits reject the reform.
Reform of the general structure of presidential nomination and Senate confirmation is not squarely within the Commission’s remit. In this Part we consider some means by which to address potential confirmation impasses under a system of term limits. In addition, in an Appendix to this Report we summarize some helpful testimony regarding potential reforms to the confirmation process more generally.
A. Term Limits by Constitutional Amendment and the Confirmation Process
The options for designing a mechanism to avoid a confirmation impasse are different and broader in the context of designing an amendment as opposed to a statute. Some have suggested that a constitutional amendment should provide that a nominee will be deemed confirmed if the Senate does not vote to disapprove within a specified time, such as four months after nomination.[92] (This proposal is somewhat similar to Madison’s initial proposal at the Constitutional Convention that judges be deemed confirmed if they were not rejected by a two-thirds vote of the Senate by a date certain, a proposal that the Convention rejected.[93]) This might be a good idea as a starting point, but more is required to address the risk of the Senate repeatedly voting down successive nominees for a particular eighteen-year seat.
To begin to address this potential concern, the amendment would first have to define the circumstances that trigger any fallback mechanism. For instance, the trigger might be the Senate voting down two consecutive nominees. This trigger may be particularly apt if the amendment also adopts the provision deeming a nominee automatically confirmed if the Senate fails to vote at all after a set time. If that time is set at four months, then this fallback mechanism would come into play after roughly eight months of a confirmation impasse. Another option would be to trigger the fallback mechanism at a set amount of time after the date the President nominates a person for the particular eighteen-year position.
The Commission is not aware of any scholarship that explores in-depth the issue of an appropriate design for a fallback mechanism. Witnesses offered a few brief suggestions. One is that the President present three nominees to the Senate; if the Senate rejects all three, the President is then empowered to choose one of those to sit on the Court.[94] But Presidents could easily game this system, choosing two figures the Senate would never approve and thereby effectively gaining unilateral power to fill the seat. Another possibility would be for the amendment to specify that the Senate cannot conduct other business while a nomination is pending.[95] But this approach would preclude the Senate from acting on any number of urgent issues that might arise, including those involving our national security.
From an institutional-design perspective, the challenge is that any backup mechanism that stays within the traditional President–Senate framework risks giving either too much unilateral power to the President or too much blocking power to the Senate. The solution might need to rest with an institution that sits outside this framework. One possibility is that, in case of a prolonged impasse, the chief judges of the twelve non-specialized federal courts of appeals (or a subset of them) could be assigned one of two roles.[96] On one approach, once this fallback mechanism is triggered, this body of chief judges would become the confirmation body for the President’s choice. Two institutions of the government would thus still be required to confirm a Justice. A subsidiary issue to consider is whether the President should be precluded from nominating any individual whose appointment to the Court the Senate has affirmatively rejected.
A second option would be to give the chief judges (or a subset of them) the power to directly designate a Justice after a prolonged impasse. The amendment could also limit the chief judges to selecting a sitting federal court of appeals judge. These are the individuals with appropriate experience whose fitness for the Court the chief judges would be in the best position to evaluate. Good reasons might exist to appoint to the Court persons other than federal court of appeals judges. But empowering the chief judges to directly appoint anyone in the country to the Court would put enormous discretion in the hands of this body. Limiting the set of potential appointees to existing court of appeals judges would substantially constrain this power. Because this fallback mechanism would come into play only when the Senate repeatedly rejects a President’s nominees, it is not likely to affect the majority of seats on the Court.
If one worries that the knowledge of the sitting chief judges’ identities would shape the actions of the President or the Senate, this power could be given to a random selection of seven or five of the chief judges. An advantage of using the chief judges (or a subset of them) is that the amendment would not have to design from scratch a new, independent institution to serve as the fallback mechanism. Given the complexities of designing such a new institution, as well as questions about how well the public would accept that institution, the easier course may be to use a set of actors who have been Senate confirmed already and for whom a selection mechanism also already exists.[97]
An amendment could instead provide that if the Senate rejected one nominee, the threshold for confirmation of the next nominee for that seat would decrease. Alternatively, the amendment could provide that if the Senate fails to confirm a nominee by a certain point, the President would have the power to designate any sitting federal judge (or any circuit judge) to fill that eighteen-year seat. But both of these options might be thought to give too much power to the President.
B. Term Limits by Statute and the Confirmation Process
If term limits are implemented by a statute rather than a constitutional amendment, modifications to the confirmation process must be consistent with the current constitutional framework, which gives the President the power to select a nominee and the Senate the power to approve or disapprove. It might still be possible to create a backup mechanism of the sort discussed above, but such a mechanism would have to be understood as a delegation of authority by the Senate and/or the President. The constitutionality of such a delegation is not clear, and the relevant actor might also be able to revoke it unilaterally, undoing most of its benefits.
Another means of dealing with the possibility of a prolonged impasse might include a statute that prescribes that the threshold number of votes for confirmation decreases each time the Senate refuses to confirm a nominee. The constitutionality of such a statute is unclear, however, given that the Constitution gives each chamber the power over its own rules and procedures.[98] The Senate could instead incorporate such a policy into its own Senate rules; a later Senate, however, could change that rule. Alternatively, consistent with the Designated Justices proposal set out above, a statute might provide that in the event of an impasse, the President could designate a lower court judge to fill the Supreme Court vacancy for an eighteen-year term without Senate confirmation. This statute would be subject to many of the same constitutional concerns as the Designated Justices proposal, although it would operate with respect to only some seats rather than all of them.
Last, a statute might provide that if the Senate fails to confirm one or both of a President’s scheduled appointments, the next President of a different party would lose a corresponding number of appointments. While this approach might occasion substantial constitutional debate, its justification might be grounded in the view that Congress has authority to determine the timing of judicial appointments, as well as the size of the Court. But even if constitutionally defensible and reasonably effective, making party affiliation relevant to the operation of the statute is arguably problematic. Such a statute also poses the risk that an extended impasse would shrink the Court. And because what is effected by statute can also be undone by statute, this alternative could also become another front in the polarized and destabilizing partisan contestation of the times.
VI. Concluding Considerations
A final set of concerns about enacting term limits via statute rather than constitutional amendment can be viewed as prudential or grounded in the separation of powers. If Congress has the power to change the composition of the Court by statute, it could mean that Congress has considerable flexibility in altering the duties of the Justices in other ways. Once Congress has exercised the power to change the Court’s composition by statute in order to regularize appointments, Congress might seek to do so for other purposes. If federal statutes can validly restrict members of the Supreme Court to a very limited set of duties after a certain number of years, Congress might try to establish other criteria for imposing similar limits on a subset of Justices. Even if one focuses entirely on term limits, moreover, the group of Supreme Court practitioners cited in the introduction to this Chapter warns that “a statutory solution would be inherently unstable”; over the years, Congress might amend the system depending on whether Congress and the White House are in the same hands at the moment.[99] Opponents of term limits are especially critical of a statutory approach, arguing that if term limits may be changed by statute, then an angry Congress could punish the Court by reducing the term of office anytime it chose to do so. Critics of the statutory approach argue that it is precisely to avoid such risks that the Constitution does not permit Congress to impose term limits by statute. On this view, the degree of consensus required for a constitutional amendment provides important security against the composition of the Court being manipulated for partisan or ideological reasons.
For some members of the Commission, the existence of constitutional doubt, as well as the significance and complexity of adopting a system of term limits, are themselves reasons to pursue the reform through constitutional amendment. They worry that a statute altering the Court’s composition will generate greater uncertainty and mistrust than other constitutional questions. When litigants eventually challenge a term limits statute, the Court would have to decide on the constitutionality of a law that restructures the Court itself. There might also be strong disagreements about which Justices should participate in the decision. No matter which way the Court came out on the question, these Commissioners worry that the Court’s legitimacy, or perceptions of its legitimacy, would be undermined.
Members of the Commission who support a statutory solution believe these concerns are overblown. They do not believe that a term limits statute would be any more destabilizing than a host of other issues that the Court has confronted over the years. They also think that inaction carries its own risks, and that the appointments process now displays a degree of dysfunction that makes remedial action urgent. Given the powers that Congress and the President already have to regulate the Court, proponents believe that recognizing the power of Congress to regularize appointments would not add more risk than it is worth—and as a practical matter, if the reform were adopted with strong bipartisan support, the precedent established by the statute might not carry over to other situations.
At a minimum, the contestability of statutory approaches counsels in favor of serious deliberation by Congress if it chooses to consider this route. In these deliberations, we hope that Congress would keep in mind the central structural values of our Constitution, particularly the principle of judicial independence, and consider what future Congresses, armed with the same constitutional powers, might someday attempt. Indeed, in recent years, we have seen democratic governments “regress” or “backslide” with respect to judicial independence. This has come about through electoral majorities using their power to restructure previously independent institutions, including courts, to favor the political agendas of those governments. Comparative political scientists have concluded that the democratic systems most resistant to this prospect are those in which an electoral majority is not sufficient to change the fundamental structure of institutions such as the courts.
Endnotes: Chapter 3
- ↑ Presidential Commission on the Supreme Court of the United States 5 (July 16, 2021) (written testimony of the Supreme Court Practitioners’ Committee), https://www.whitehouse.gov/wp-content/uploads/2021/07/Geller-Mahoney-Testimony.pdf.
- ↑ See, e.g., Maggie Jo Buchanan, The Need for Supreme Court Term Limits, Ctr. for Am. Progress (Aug. 3, 2020), https://www.americanprogress.org/issues/courts/reports/2020/08/03/488518/need-supreme-court-term-limits; Lee Drutman, It’s Time for Term Limits for Supreme Court justices, Vox (June 27, 2018), https://www.vox.com/platform/amp/polyarchy/2018/6/27/17511030/supreme-court-term-limits-retirement.
- ↑ See, e.g., Presidential Commission on the Supreme Court of the United States 2 (July 20, 2021) (written testimony of Akhil Amar, Yale Law School), https://www.whitehouse.gov/wp-content/uploads/2021/07/Amar-Testimony.pdf; Presidential Commission on the Supreme Court of the United States 6 (June 30, 2021) (written testimony of Michael W. McConnell, Stanford Law School), https://www.whitehouse.gov/wp-content/uploads/2021/06/McConnell-SCOTUS-Commission-Testimony.pdf. One scholar who testified to the Commission, and had been against term limits for the Court in the mid-2000s, now favored term limits and explained why her view had changed since then. See Presidential Commission on the Supreme Court of the United States 1–2 (July 20, 2021) (written testimony of Vicki C. Jackson, Harvard Law School), https://www.whitehouse.gov/wp-content/uploads/2021/07/Jackson-Testimony.pdf (citing Vicki C. Jackson, Packages of Independence: The Selection and Tenure of Article III Judges, 95 Geo. L.J. 965, 1007–08 (2007)).
- ↑ Compare Robert P. George, Michael W. McConnell, Colleen A. Sheehan & Ilan Wurman, The Conservative Constitution, Nat’l Const. Ctr. (2020), https://constitutioncenter.org/media/files/The_Conservative_Constitution.pdf, with Caroline Fredrickson, Jamal Greene & Melissa Murray, The Progressive Constitution, Nat’l Const. Ctr. (2020), https://constitutioncenter.org/media/files/The_Progressive_Constitution.pdf.
- ↑ See, e.g., J. Harvie Wilkinson III, Supreme Court Term Limits Wouldn't Solve Anything, Wash. Post (Oct. 17, 2021), https://www.washingtonpost.com/opinions/2021/10/18/supreme-court-term-limits-wouldnt-solve-anything; Stephen B. Burbank, Alternative Career Resolution II: Changing the Tenure of Supreme Court Justices, 154 U. Pa. L. Rev. 1511 (2006) (offering criticisms of the main reform proposals and the critiques of life tenure); Ward Farnsworth, The Regulation of Turnover on the Supreme Court, 2005 U. Ill. L. Rev. 407 (2005) (defending the system of life tenure); William G. Ross, The Hazards of Proposals to Limit the Tenure of Federal Judges and to Permit Judicial Removal Without Impeachment, 35 Vill. L. Rev. 1063 (1990); David R. Stras & Ryan W. Scott, Retaining Life Tenure: The Case for a “Golden Parachute,” 83 Wash. U. L.Q. 1397, 1397 (2005).
- ↑ See State Supreme Courts, Ballotpedia, https://ballotpedia.org/State_supreme_courts (detailing the election or appointment procedure for each state); D.C. Code § 11-1502 (2021) (exemplifying a law with a mandatory retirement age and renewable terms); Francis X. Shen, Aging Judges, 81 Ohio State L.J. 235 app. (2020) (providing mandatory retirement age data); Council of State Gov’ts, The Book of the States 189 tbl.5.1 (2019) (furnishing term length data); Sandra Schultz Newman & Daniel Mark Isaacs, Historical Overview of the Judicial Selection Process in the United States: Is the Electoral System in Pennsylvania Unjustified?, 49 Vill. L. Rev. 1 app. (2004) (providing state-by-state data on selection processes, term lengths, and retirement requirements).
- ↑ See State Supreme Courts, supra note 6; D.C. Code § 11-1502 (2021).
- ↑ See State Supreme Courts, supra note 6.
- ↑ See Jackson Testimony, supra note 3, at 1; Presidential Commission on the Supreme Court of the United States 3 (June 25, 2021) (written testimony of Rosalind Dixon, University of New South Wales), https://www.whitehouse.gov/wp-content/uploads/2021/06/Dixon-Letter-SC-commission-June-25-final.pdf (“[T]he Justices continue to enjoy lifetime appointment, without being subject to any form of term limit or mandatory retirement age, in ways that are increasingly unusual in global terms.”).
- ↑ Presidential Commission on the Supreme Court of the United States 3 (July 20, 2021) (written testimony of Tom Ginsburg, University of Chicago Law School), https://www.whitehouse.gov/wp-content/uploads/2021/07/Ginsburg-Testimony.pdf.
- ↑ Id. at 2.
- ↑ U.S. Const. art. III, § 1. This formula does not mean that judges, once in office, are entirely immune from consequences or professional incentives. Judges may, of course, be impeached for high crimes and misdemeanors, lower court judges may be elevated to higher courts, and Associate Justices may be appointed Chief Justice.
- ↑ McConnell Testimony, supra note 3, at 7.
- ↑ See Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 Harv. J.L. & Pub. Pol’y 769, 778–79 (2006). Nevertheless, Supreme Court vacancies have always occurred irregularly. See Allison Rabkin Golden, David Herman, Alexander Nocks, Ayoub Ouederni & Kaveri Sharma, Vacancies and Tenures on the Supreme Court: A Response to Calabresi and Lindgren (2021) (on file with the Presidential Commission on the Supreme Court of the United States).
- ↑ Roger C. Cramton, Reforming the Supreme Court, 95 Calif. L. Rev. 1313, 1316–20 (2007).
- ↑ Supreme Court Practitioners’ Committee Testimony, supra note 1, at 78–82; Justices 1789 to Present, Sup. Ct. U.S., https://www.supremecourt.gov/about/members_text.aspx.
- ↑ David Ingold, Eighty Is the New 70 as Supreme Court Justices Serve Longer and Longer, Bloomberg (Apr. 7, 2017), https://www.bloomberg.com/graphics/2017-supreme-court-justice-tenure (“In 1900, justices tended to be in their late 50s when they joined the court. Today, the average age is about five years younger, and President Donald Trump’s nomination of Gorsuch, currently 49 years old, only furthers that trend.”); see also Presidential Commission on the Supreme Court of the United States 5 (June 30, 2021) (written testimony of Maya Sen, John F. Kennedy School of Government, Harvard University), https://www.whitehouse.gov/wp-content/uploads/2021/06/Sen-Written-Testimony.pdf.
- ↑ Both the median and modal number of appointments are 2, and the mean is 1.83. See Justices 1789 to Present, supra note 16.
- ↑ There have been only six if we include the Reconstruction period, in which Republicans, following Abraham Lincoln’s assassination, refused to allow any appointments by his successor, Andrew Johnson.
- ↑ See generally Terri L. Peretti, Promoting Equity in the Distribution of Supreme Court Appointments, in Reforming the Court: Term Limits for Supreme Court Justices 435 (Roger C. Cramton & Paul D. Carrington eds., 2006).
- ↑ Cf. Jason P. Davis & Kathleen M. Eisenhardt, Rotating Leadership and Collaborative Innovation: Recombination Processes in Symbiotic Relationships, 56 Admin. Sci. Q. 159, 194 (2011) (linking rotating personnel and innovation in decisionmaking); Amir Erez, Jeffrey A. Lepine & Heather Elms, Effects of Rotated Leadership and Peer Evaluation on the Functioning and Effectiveness of Self-Managed Teams: A Quasi-Experiment, 55 Personnel Psych. 929, 929 (2002) (“[T]eams that rotated leadership among members had higher levels of voice, cooperation, and performance.”).
- ↑ David Rock & Heidi Grant, Why Diverse Teams Are Smarter, Harv. Bus. Rev. (Nov. 4, 2016), https://hbr.org/2016/11/why-diverse-teams-are-smarter; Steven A. Ramirez, Diversity, Compliance, Ethics & In-House Counsel, 48 U. Tol. L. Rev. 465, 483 (2017).
- ↑ Darren Rosenblum & Yaron Nili, Board Diversity by Term Limits?, 71 Ala. L. Rev. 211, 242–44 (2019) (describing various businesses that have implemented term limits for members of their boards of directors, and the accompanying decline in the median age of members serving on these boards).
- ↑ In Japan, for instance, judges are appointed by the Cabinet from lists of candidates nominated by the Supreme Court and serve for a term of ten years. Courts in Japan, Sup. Ct. Japan (2020), https://www.courts.go.jp/english/vc-files/courts-en/file/2020_Courts_in_Japan.pdf.
- ↑ See Presidential Commission on the Supreme Court of the United States (July 16, 2021) (written testimony of Margaret H. Marshall, Choate Hall & Stewart LLP), https://www.whitehouse.gov/wp-content/uploads/2021/07/Marshall-Testimony.pdf.
- ↑ In addition to providing that the Justices shall hold their office for “good Behaviour,” Article III, Section 1 of the Constitution provides that they shall, “at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” U.S. Const. art. III, § 1. Cf. infra notes 63–83 and accompanying text.
- ↑ Farnsworth, supra note 5, at 437–38.
- ↑ See Burbank, supra note 5, at 1548; Arthur D. Hellman, Reining in the Supreme Court: Are Term Limits the Answer?, in Reforming the Court: Term Limits for Supreme Court Justices 291, 298–303 (Roger C. Cramton & Paul D. Carrington eds., 2006).
- ↑ See Presidential Commission on the Supreme Court of the United States 12 (Oct. 2021) (written testimony of Philip Bobbitt, Columbia Law School), https://www.whitehouse.gov/wp-content/uploads/2021/10/Professor-Philip-Bobbitt.pdf; Presidential Commission on the Supreme Court of the United States 5 (Aug. 2, 2021) (written testimony of Michael Stokes Paulsen, University of St. Thomas School of Law), https://www.regulations.gov/comment/PCSCOTUS-2021-0001-2159; Presidential Commission on the Supreme Court of the United States 18 (July 20, 2021) (written testimony of Randy E. Barnett, Georgetown University Law Center), https://www.whitehouse.gov/wp-content/uploads/2021/07/Barnett-Testimony.pdf.
- ↑ Farnsworth, supra note 5, at 411.
- ↑ Empirical studies modeling the effects of term limits on doctrinal change suggest different possibilities. See Adam Chilton, Daniel Epps, Kyle Rozema & Maya Sen, Designing Supreme Court Term Limits, 95 S. Cal. L. Rev. (forthcoming 2021) (manuscript at 40–42) (on file with the Presidential Commission on the Supreme Court of the United States) (finding that all but one of the most prominent proposals for term limits would likely have produced fewer flips than actually occurred in the real world); Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade’s Whiplash, 98 Tex. L. Rev. 121, 160 (2019) (concluding that “the danger of increased instability due to term limits is very real” and needs to be weighed against the potential benefits of term limits); cf. Stefanie A. Lindquist, Judicial Activism in State Supreme Courts: Institutional Design and Judicial Behavior, 28 Stan. L. & Pol’y Rev. 61, 102 fig. 6 (2017) (indicating that the state supreme courts with either life tenure or tenure until age 70 overrule fewer precedents than state supreme courts with most other judicial retention methods).
- ↑ Cf. Farnsworth, supra note 5, at 416 (“A two-term president may reflect a single national mood, and there may be value in a Court that cannot be remade by one such gust.”).
- ↑ According to a committee of distinguished Supreme Court practitioners, however, “orchestrating timing within two-year windows would still often prove difficult,” and “[t]he fact that more Justices would have shorter track records” could also impede predictions. Supreme Court Practitioners’ Committee Testimony, supra note 1, at 86.
- ↑ See Hellman, supra note 28, at 303–08.
- ↑ The Federalist No. 78, at 393 (Alexander Hamilton) (Ian Shapiro ed., 2009).
- ↑ Id. at 392–93.
- ↑ Supreme Court Practitioners’ Committee Testimony, supra note 1, at 78–82; Justices 1789 to Present, supra note 16.
- ↑ See Lee Epstein, Jack C. Knight & Olga Shvetsova, Comparing Judicial Selection Systems, 10 Wm. & Mary Bill Rts. J. 7, 36 (2001) (“Our analysis of non-renewable terms—an institution used quite frequently in the European context—suggests … it may be more effective [than life tenure] at encouraging sincere behavior on the part of justices.”); Michael S. Kang & Joanna M. Shepherd, Free to Judge? How Campaign Finance Money Biases Judges (Stanford Univ. Press, forthcoming 2023) (discussing the experience of state courts with respect to term limits and mandatory retirement ages).
- ↑ Farnsworth, supra note 5, at 411.
- ↑ See Jackson Testimony, supra note 3, at 5; State Supreme Courts, supra note 6.
- ↑ See Ginsburg Testimony, supra note 10, at 3; Zachary Elkins & Tom Ginsburg, Characteristics of National Constitutions, Version 3.0, Compar. Consts. Project (May 20, 2021), https://comparativeconstitutionsproject.org/download-data/#.
- ↑ Jackson Testimony, supra note 3, at 5.
- ↑ See Justices 1789 to Present, supra note 16.
- ↑ McConnell Testimony, supra note 3, at 7.
- ↑ See Chilton, Epps, Rozema & Sen, supra note 31.
- ↑ Tracey E. George & Chris Guthrie, Remaking the United States Supreme Court in the Courts’ of Appeals Image, 58 Duke L.J. 1439, 1461 (2009).
- ↑ McConnell Testimony, supra note 3, at 5.
- ↑ Id.
- ↑ See Chapter 2, at 93.
- ↑ Calabresi & Lindgren, supra note 14, at 826–31.
- ↑ Chilton, Epps, Rozema & Sen, supra note 31, at 3.
- ↑ Designers would have to consider how a term limits system would operate in relation to the existing set of retirement statutes and whether those would need to be changed.
- ↑ See Jackson Testimony, supra note 3, at 18.
- ↑ See, e.g., Amar Testimony, supra note 3, at 3–4; Cramton, supra note 15, at 1323–25; H.R. 8424, 116th Cong. (2020); H.R. 5140, 117th Cong. (2021); Term Limits, Fix Ct. (Sep. 29, 2020), https://fixthecourt.com/fix/term-limits.
- ↑ Amar Testimony, supra note 3.
- ↑ 510 U.S. 163 (1994).
- ↑ 28 U.S.C. § 43(b).
- ↑ 5 U.S. (1 Cranch) 299 (1803).
- ↑ Id. at 309.
- ↑ Id.
- ↑ See generally Joshua Glick, Comment, On the Road: The Supreme Court and the History of Circuit Riding, 24 Cardozo L. Rev. 1753 (2003).
- ↑ See 28 U.S.C. § 294.
- ↑ U.S. Const. art. III, § 1.
- ↑ U.S. Const. art. II, § 2.
- ↑ 291 U.S. 339 (1934).
- ↑ Id. at 351.
- ↑ Id. at 350.
- ↑ Id.
- ↑ 539 U.S. 69, 72 (2003) (noting that while judges of the District Court for the Northern Mariana Islands cannot be designated to sit on a federal court of appeals because they are not Article III judges, senior circuit judges “are, of course, life-tenured Article III judges who serve during ‘good Behaviour’ for compensation that may not be diminished while in office”).
- ↑ Booth, 291 U.S. at 351.
- ↑ In the alternative, one might argue that they retain judicial office, but not office as Supreme Court Justices, or that they hold multiple judicial offices, and give up one when they take senior status. See David R. Stras & Ryan W. Scott, Are Senior Judges Unconstitutional?, 92 Cornell L. Rev. 453, 475–78 (2007) (suggesting that both Booth and 28 U.S.C. § 371 could be read to mean that senior status judges retain judicial office without still holding the same offices that they served in before they retired); cf. William Baude, The Unconstitutionality of Justice Black, 98 Tex. L. Rev. 327, 338–42 (2019) (focusing specifically on the retirement of Supreme Court Justices, and discussing the possibilities that they retain their old office, that they move into a new office, or that they started off with two offices and surrender one upon retirement).
- ↑ John Harrison, The Power of Congress Over the Terms of Justices of the Supreme Court, in Reforming the Court: Term Limits for Supreme Court Justices 361, 366 (Roger C. Cramton & Paul D. Carrington eds., 2006).
- ↑ Id.
- ↑ Id. at 367; cf. Philip B. Kurland, The Constitution and the Tenure of Federal Judges: Some Notes from History, 36 U. Chi. L. Rev. 665, 697 (1969) (“I am quite convinced that it would be unconstitutional for the Congress to attempt, by legislation, to establish a fixed term of office for judges of the federal constitutional courts.”).
- ↑ Act of Feb. 25, 1919, ch. 29, § 6, 40 Stat. 1156, 1157 (codified as amended at 28 U.S.C. § 375 (1934)).
- ↑ Because Booth involved the 1919 federal statute under which lower federal court judges had been deciding cases as senior judges, Booth also concluded that it was “too late to contend that services so performed were extra-legal and unconstitutional.” Booth, 291 U.S. at 351. It is unclear what weight that factor—or the practice of retired Justices sitting by designation on lower federal courts—would carry in a statute that imposes for the first time on Supreme Court Justices the new status of Senior Justices.
- ↑ See 17 Annals of Cong. 22 (1807).
- ↑ See First-Ever Measure to End Life Tenure on the Supreme Court Via Statute, Not Amendment, To Be Introduced, Fix Ct. (Sept. 29, 2020), https://fixthecourt.com/2020/09/first-ever-measure-end-life-tenure-supreme-court-via-statute-not-amendment-introduced (referring to H.R. 8424, 116th Cong. (2020)).
- ↑ See Jack M. Balkin, Don’t Pack the Court. Regularize Appointments., Balkinization (Oct. 5, 2020), https://balkin.blogspot.com/2020/10/dont-pack-court-regularize-appointments.html.
- ↑ U.S. Const. art. III, § 2.
- ↑ 5 U.S. 137 (1803).
- ↑ Id. at 175.
- ↑ U.S. Const. art. III, § 1.
- ↑ See Calabresi & Lindgren, supra note 14, at 855–58, 860 (2006) (considering the proposal but rejecting it because the work of a Supreme Court Justice is not germane to the duties of a lower court judge).
- ↑ U.S. Const. art. II, § 2, cl. 3.
- ↑ Diana Gribbon Motz, The Constitutionality and Advisability of Recess Appointments of Article III Judges, 97 Va. L. Rev. 1665, 1670 (2011).
- ↑ See, e.g., United States v. Woodley, 751 F.2d 1008, 1014 (9th Cir. 1985) (stating that “a recess appointment to the federal bench [] could exercise the judicial power of the United States”).
- ↑ Following President Eisenhower’s recess appointments of three Justices, the Senate passed a resolution discouraging the practice of Supreme Court recess appointments, but the primary concern there was that recess appointments bypass the advice and consent process, not that they are temporary.
- ↑ Motz, supra note 86, at 1670 (“By 2000, Presidents had made more than 300 recess appointments of Article III judges, and of those, only thirty-four had not been confirmed.”).
- ↑ Harrison, supra note 72, at 365.
- ↑ A final objection to the Designated Justices proposal is that it adds new duties to the office of lower federal court judge, perhaps triggering the germaneness analysis set out in Weiss v. United States, 510 U.S. 163 (1994), discussed above. See Calabresi & Lindgren, supra note 14, at 860 (2006) (raising this concern). This analysis might or might not apply to judges appointed after the proposal’s enactment—Weiss assumes without deciding that germaneness also governs the prospective addition of duties for unknown future officeholders.
- ↑ McConnell Testimony, supra note 3, at 6.
- ↑ Adam J. White, Toward the Framers' Understanding of “Advice and Consent”: A Historical and Textual Inquiry, 29 Harv. J.L. & Pub. Pol‘y 103 (2005).
- ↑ Ginsburg Testimony, supra note 10, at 10.
- ↑ See Steven G. Calabresi, End the Poisonous Process of Picking Supreme Court Justices, N.Y. Times (Sept. 22, 2020), https://www.nytimes.com/2020/09/22/opinion/ginsburg-supreme-court-confirmation.html (arguing that “the Senate [should] be forbidden from taking action whatsoever on any of its calendars” in the event of “[f]ailure to confirm a justice by July 1 of a president’s first or third year”).
- ↑ Jackson Testimony, supra note 3, at 11 n.30.
- ↑ The current federal statute that determines who serves as chief judge of a court of appeals, 28 U.S.C. § 45, is well-designed and has served the country well. To the extent there is any concern Congress might modify the statute for partisan reasons to game this fallback mechanism for Supreme Court appointments, the amendment could include the provisions of the current statute.
- ↑ U.S. Const. art. I, § 5.
- ↑ Supreme Court Practitioners’ Testimony, supra note 1, at 82; see also Harrison, supra note 72, at 372 (providing examples of “gamesmanship” that could be attempted).