The Empirical Case for Supreme Court Term Limits
President Joe Biden has announced his intention to pursue term limits for Supreme Court justices, a reform with broad public support across the political spectrum. As the public increasingly loses confidence in the Court as an apolitical institution, it is both timely and prudent for Biden to consider this path.
We have studied the potential impact of instituting Supreme Court term limits, and the findings are compelling. Term limits could address some of the woes plaguing the Court.
Supreme Court nominations have become intensely politicized, partly due to their irregularity. Biden appointed only one justice in his one term, Ketanji Brown Jackson, while Donald Trump appointed three in his single term: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. (One-termer Jimmy Carter appointed none.) Why should one president have the opportunity to appoint three times as many justices as his successor?
Term limits solve this problem. Limiting the justices to staggered 18-year terms (as many court reform proposals do) regularizes appointments. This approach could significantly reduce partisan conflict surrounding nominations; if every president knows he or she will appoint two justices and the Senate knows that the next vacancy is always right around the corner, the process will likely become less contentious and overwrought. The stakes associated with any single appointment will go down. It’s not a panacea in a polarized era, but it can help. Plus, it reduces the role of mortality and retirements, which is an unpredictable way to run a branch of government.
Term limits also limit how long any jurist can exercise vast power. Clarence Thomas was appointed to the Supreme Court in 1991. Although the president who named him, George H.W. Bush, left office in 1993, Thomas has sat on the court for over three decades and through seven presidential elections. This isn’t about ideology. New Deal official William O. Douglas was tapped for the Court under Franklin Roosevelt and served 36 years until Gerald Ford’s presidency, the longest of any justice.
Moreover, term limits diminish the incentives for justices to time their retirements strategically. Ruth Bader Ginsburg clung to her seat, hoping Hillary Clinton would prevail in the 2016 election, but her gamble did not pay off. When she died just weeks before the 2020 election, Trump nominated Amy Coney Barrett to fill her seat. But other justices’ retirement decisions have kept their seats under same-party control. Reagan’s last nominee for the Court, Anthony Kennedy, for instance, retired during Trump’s administration, enabling Republicans to confirm a like-minded successor, his former law clerk Brett Kavanaugh. Similarly, Stephen Breyer, likely chastened by the Ginsburg example, retired during the Biden presidency.
Such “strategic retirements” empower the justices to try to choose their successors, undermining the founders’ vision of a judiciary shaped by the President and the Senate—by electoral forces—and not justices consulting actuarial tables. Imposing term limits would eliminate this incentive for judges to have an outsized role in choosing their successor.
These are theoretical arguments and empirical ones rooted in data-driven simulations in our recent research. Our research demonstrates the potential for term limits to foster a healthier relationship between the Court and the American electorate. For example, historically, roughly 60 percent of the years between 1937 and 2020 saw an ideologically “imbalanced” court—where one party’s appointments controlled seven or more seats.
But term limits change this entirely. When we simulated what the Court would have looked like with term limits, the median number of years where one party’s appointments controlled seven or more seats would have been reduced by as much as half. Why? Under term limits, presidents of both parties get an even shot to make appointments, and without incentives to retire strategically, justices would have to retire under opposing party presidents, so the share of seats “locked in” by either party would go down.
It will not be easy to implement term limits. Beyond the political hurdles to adopting them, questions have also been raised about whether imposing Supreme Court term limits by an ordinary statute would be constitutional. The primary concern is that the constitution stipulates that the Supreme Court justices “shall hold their Offices during good Behaviour,” which is often interpreted to mean that they must have life tenure. However, there is strong academic support for the idea that term limits could be constitutional as long as the justices would continue to have the option of having a meaningful role as a judge after their 18-year term expires. For instance, the justices could be replacements for other judges recusing themselves. Moreover, they could hear cases at the lower court levels, which was common during the 18th and 19th centuries and which some retired justices have done in recent years
We leave it to others to fully debate the constitutionality of various term limits proposals, including the one ultimately favored by President Biden. If implemented, term limits could restore balance and integrity to an institution that has lost public trust as it plays an ever-greater role in American life.
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