By Amanda Palini

Article III, Section 1 of the U.S. Constitution states that Supreme Court justices shall hold their offices during good behavior, which has resulted in Supreme Court justices serving lifetime appointments.[1] Should a justice not act in good behavior they may be impeached.[2] However, this has only happened once to Justice Samuel Chase, who was ultimately acquitted and served on the Court until his death.[3] The United States is the only country that has true lifetime tenure for its Supreme Court without an age limit.[4] All other countries that allow for “lifetime” tenure implement age limits which requires retirement at a certain age.[5] The framers intended to prevent Supreme Court justices from being influenced by popular opinion when deciding their cases.[6] However, what they did not expect was life expectancy to increase by as much as it has. Life expectancy at the time of ratification was 57 and has increased now by over 20 years to an average of 79.[7] Chief Justice John Roberts explains, “the Framers adopted life tenure at a time when people simply did not live as long as they do now. A judge insulated from the normal currents of life for twenty-five or thirty years was a rarity then but is becoming commonplace today.”[8] As it stands now, the average time served on the Supreme Court is 25.3 years.[9] This may change, however, as younger justices, such as Justice Barrett, are appointed and could potentially serve for decades longer than before if they remain in good standing. Since justices serve for so long, there is no regularity in vacancies. This incentivizes Senate leaders to upend the confirmation process to secure a justice from their same political party, as demonstrated in 2016.[10] In 2016, Senate Majority Leader Mitch McConnell refused to consider then-President Barack Obama’s nomination for the Supreme Court but eliminated the filibuster for Donald Trump’s controversial Republican nominees.[11]

Proponents of a term limit suggest that it encourages rotation of opinions, prevents abuse of power, diminishes concerns about incumbency advantages, and allows for more diversity.[12] Term limits also eliminate presidents’ and Congress’ ability to appoint young people from their party of choice to a potentially decades-long position.[13] Some of the justices agree that there are benefits to term limits. Justice John Roberts explains that “Setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges. Both developments would, in my view, be healthy ones.”[14] Justice Breyer said, “I do think that if there were a long term—I don’t know, 18, 20 years, something like that, and it was fixed—I would say that was fine. In fact, it’d make my life a lot simpler, to tell you the truth.”[15]  Justice Breyer’s opinion represents the suggestion many critics have. Justice Breyer argued that an 18-year term period would give justices enough time to fully learn the job and develop jurisprudence.[16] The 18-year model would make certain that each presidential term would bring two new Justices—helping to ensure the court reflects the public view. [17] Justices could at the end of their term continue to work as federal judges in senior status as all currently retired Supreme Court justices have elected to do. [18] While there tends to be an aversion to amending the Constitution, Article III Section I as it is leaves the judiciary unrepresentative of the views of the United States public.

 

[1] U.S. Const. art. III, §1.

[2] Elizabeth Nix, Has a U.S. Supreme Court Justice Ever Been Impeached, Hist.(Apr. 7, 2022) https://www.history.com/news/has-a-u-s-supreme-court-justice-ever-been-impeached.

[3] Id.

[4] Tom Ginsburg, Term Limits and Turnover on the U.S. Supreme Court: A Comparative View, The White House, 3 (July 20, 2021) https://www.whitehouse.gov/wp-content/uploads/2021/07/Ginsburg-Testimony.pdf.

[5] Id.  

[6] Lauren Cahn, Why Do Supreme Court Justices Serve for Life, Reader’s Digest, (Mar. 1, 2022) https://www.rd.com/article/why-do-supreme-court-justices-serve-for-life/.

[7] Supra at 4.

[8] Supra at 6.

[9] Supra at 4.

[10] Supra at 6.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16]Id.

[17] Id.

[18] Id.