The Presidential Commission on the Supreme Court recently issued its final report, calling for a range of procedural changes to how the court operates — most notably, the introduction of term limits for the justices. It pointed to 18-year terms as the leading model for such change. Ideally, it suggested, the states would ratify a constitutional amendment, but some of the commissioners believed this could also be attempted through an act of Congress.
Other dissenting members of the commission think that term limits do not go far enough to curb an institution they view as hyperpartisan and as having lost public trust (the court’s approval rating has plummeted, according to Gallup, to its lowest point since 2000, when the poll began). They suggested that what was needed was an increase in the size of the court — to rebalance it in a more bipartisan direction.
More is needed to address the court’s current composition and approach — not by expanding the size of the court but through even more powerful, that is, shorter, term limits.
Eighteen years is too long to address the crisis in Supreme Court functioning and legitimacy. We need term limits that start to bite much sooner — after 12 years.
Judicial term limits are a tool widely employed by constitutional designers around the world. Some countries follow the British model of judicial age limits. Others follow the German model of fixed judicial terms, but almost all — other than the United States — reject the idea of lifetime judicial tenure. And they do so by imposing term limits shorter than 18 years.
Perhaps most important, countries with strict judicial term limits include some of the most powerful and respected constitutional courts. In Germany, justices of the Federal Constitutional Court are appointed for a single, nonrenewable 12-year term. It is the same in South Africa. And in Colombia and Taiwan, constitutional justices are appointed for an eight-year term.
Like term limits for the presidency, judicial term limits have several salutary benefits. They encourage regular turnover on a court and the renewal of democratic consent and input into the process of judicial review.
They also discourage the appointment of young, hyper-ideological judges who are seen as having the capacity to stay on the court for the long run and shift it in a particular predetermined ideological direction.
The Supreme Court does a lot more than call balls and strikes. It decides a range of complex legal and political questions, where legal and political philosophy inevitably play a role.
But for a court to earn and retain the public’s trust, those decisions must reflect a judge’s considered individual moral and political judgments, not any fixed ideological position or platform. Justices must also engage in true collective deliberation, not factional conferencing based on ideological positions.
The Supreme Court still does this in a wide range of nonconstitutional cases and cases that involve complex federal statutes like the Employee Retirement Income Security Act. But it rarely engages in that kind of thoughtful, collective deliberation in cases that involve constitutional rights and freedoms. What is good enough for employment benefits should be good enough for constitutional rights.
Expanding the court (“court packing”) might be justified if things were to get worse. For now, it risks setting off a dynamic with dangers for democracy. It could result in a cycle of escalation — as soon as Republicans regain control of Washington, they would seek to expand the size of the court as well. This would create a court that is too large, is forced to sit in panels rather than en banc, or as a whole, and produces uneven and unpredictable results. This is basically the experience of the Supreme Court of India, which has about 30 justices.
And it would mean that would-be authoritarians around the world would feel licensed to do the same. They would be encouraged to engage in what David Landau of Florida State University College of Law and I have called a form of “abusive” borrowing — the adoption of court-packing as a strategy to advance anti-democratic rather than democratic aims.
No reform is without risks. Judges with fixed terms might also start considering post-judicial opportunities in their judgments. This is especially true for lower court judges, which explains why current reform efforts are focused solely on the Supreme Court. But this seems like a minor risk for the Supreme Court itself: Most justices are likely to prefer international arbitration or law teaching to ambassadorships. And as the commission itself noted, at least if there was a constitutional amendment, there could potentially be a bar on judges’ holding certain offices during a period after retirement.
Some might worry that the court could turn out to be too responsive to politics under a 12-year term. This was the main reason the commission itself preferred 18-year judicial terms. But the composition of such a court would remain constant only for a single presidential term. And the details would matter: All judges could be appointed during the final two years of a president’s term, when there is less likely to be unified government and when a president’s choices would affect only the next president. This could also be accompanied by changes to how the Senate vets and votes on nominees.
The biggest risk is that the reform will simply fail to get off the ground. Judicial term limits can be adopted by statute or constitutional amendment. If adopted by statute, it would come before the Supreme Court for review — and the court might well reject the argument that it is compatible with Article III, which entrenches guarantees of judicial independence.
That makes constitutional amendment the safest path for any reform effort — but it is also the most difficult path. Article V provides that any successful amendment requires a supermajority in Congress and among the states. And if an amendment were a serious possibility, one might put a range of reforms — broader changes to how justices are appointed, electoral districts are drawn and campaign finance is regulated — ahead of term-limit reform in the list of structural changes likely to improve American law and politics.
Reforming an institution like the Supreme Court is tricky: Too rapid and radical an approach risks undermining all the institutional respect and capital it has built over centuries. Too moderate a response risks leaving it to face a slow decline in institutional integrity and public respect.
But especially if they could be adopted by statute, 12-year staggered judicial term limits might just help thread that needle — and contribute to meaningful yet restrained change to an institution that is in urgent need of it.
Rosalind Dixon is a law professor and director of the Gilbert + Tobin Center of Public Law at UNSW Sydney. She is the author, with David Landau, of “Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy.”